REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 8201 OF 2010 (Arising out of Special Leave Petition (C) No.6556/09

Mumbai International Airport Pvt. Ltd. ...Appellant(s)

- Versus -

M/s Golden Chariot Airport & Anr.     ...Respondent(s)

WITH  CIVIL APPEAL No. 8200 OF 2010

(Arising out of Special Leave Petition (C) No.11663/09

Airport Authority of India  ...Appellant(s)

- Versus -

M/s Golden Chariot Airport & Anr.     ...Respondent(s)

J U D G M E N T

GANGULY, J.

1. Leave granted.

2. These  two  appeals,  one  by  Mumbai  

International Airport Pvt. Ltd. and another  1

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  

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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:

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“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  

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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.

28. xxx

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 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  

applicable to the Licence Agreement. It is  

not in dispute that after the initial grant  5

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.  

7. 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  

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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.”

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 case in  

view of the declaration prayed for.

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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  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…….

10. In view of the aforesaid Order of the High  

Court,  the  matter  was  remanded  to  the  8

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.  

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, 5B and 7 of the  

1971  Act  to  the  contesting  respondent.  

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Hearings  were  conducted  on  26.10.04  and  

8.11.04.

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 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  

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Estate  Officer  heard  the  case  of  the  

contesting  respondent  and  rejected  the  

same.

13. Aggrieved, the contesting respondent filed  

a writ 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 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  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.

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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 an  

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  

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  Authority  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 the Mumbai Airport and to enter  

into contracts with third parties for the  

said purpose.

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19. On 4.04.06, MIA entered into an Operation,  

Management and Development Agreement (OMDA)  

whereby AAI granted MIA the exclusive right  

and authority (for 30 years commencing from  

3.05.06) to undertake some of the functions  

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  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 appeal  

filed by the contesting respondent (Appeal  

No.39/2006). The appeal of the contesting  

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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 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 26.07.08, the Bombay High Court  

passed  an  ex-parte  ad-interim  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.

23. The Bombay High Court passed the impugned  

Order  on  4.03.09  whereby  it  allowed  the  

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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  

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.

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 dated 4.3.09, an SLP (6556/2009) was  

filed by MIA, and soon thereafter, another  

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SLP challenging the same order of the High  

Court was filed by AAI on 28.3.09.

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 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  

this Court on 29.1.10, that there was no  

Estate Officer for hearing the matter. This  

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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.

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 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  

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that the Order of the Estate Officer would  

be made available to the parties within the  

next  two  days.  The  parties  were  given  

liberty,  if  so  advised,  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  29.4.10,  the  Estate  

Officer, after 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,  

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challenging the abovementioned Order of the  

Estate Officer.

31. The matter was placed before this Court on  

11.5.10 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 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  stand  and  contended  that  the  

proceedings  before  this  Court  had  not  

become infructuous and as this Court has  

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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.  

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 proceedings before this Court had  

not become infructuous. 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 the 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  

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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. In support of his argument, he cited  several decisions of this Court.

Mr.Rohtagi,  learned  senior  counsel  also  in  support  of  his  submission  cited several decisions and submitted that  this  Court  passed  the  order  in  order  to  prevent  conflict  of  decisions  and  also  considering the facts and circumstances and  the question of public   interest   involved  in   this     case namely the urgency of  expanding  Bombay  Airport  and  the  right  of  the respondents to run their restaurant in  the said Airport.

   This Court, however, by balancing the  equity  had  passed  the  said  order  and  the  said  order  does  not  decide  the  questions  that  are  raised  in  the  SLPs  which  are  pending  and  over  which  this  Court  retains  

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its seisin. We are of the view that by the  order which has been passed namely the order  dated  11.02.2010,  the  right  of  the  respondents to file an appeal has not been  taken away. This Court preserved the right  of the respondents and also permitted them  to challenge the order that may be passed by  the Estate Officer by filing an appropriate  additional affidavit before this Court.

  In view of the above, this Court directs  that the appeal which has been filed by the  respondents  (Misc.Appeal  No.50  of  2010)  before  the  Principal  Judge,  City  Civil  Court, Mumbai be transferred to this Court.  The record of the said appeal may form part  of  these  SLPs.  The  petitioners  are  at  liberty  to  file  any  additional  affidavit  in  answer  to  the  appeal  filed  by  the  respondents. The respondents may also file  reply  to  the  same.  Such  filing  must  be  completed by the parties by 09.07.2010.

    The matter may be placed for further  consideration  before  this  Court  on  14.07.2010.”

35. Then the matter was taken up before this  

Court on 29.7.10 and the learned Counsel  

for  the  contesting  respondent  submitted  

that Mr. K.K Gupta was not authorized to  

discharge  the  functions  of  an  Estate  

Officer in accordance with Section 3(a) of  

the 1971 Act. To respond to such a stand,  

2

the learned Counsel for AAI took some time  

to  produce  the  necessary  notifications  

showing  the  appointment  of  the  Estate  

Officer.  

36. Thereafter,  the  matter  was  heard.  Before  

this  Court,  the  learned  Counsel  for  the  

contesting respondent, apart from raising  

the aforesaid contention that Mr. K.K Gupta  

was  not  validly  appointed  as  an  Estate  

Officer, raised various other contentions.  

37. It was first contended that there was an  

oral  assurance  for  an  extension  of  the  

licence to the extent that it will be an  

irrevocable licence. Relying on such oral  

extension, the contesting respondent made  

substantial investment for constructing the  

restaurant. The second contention was that  

the  licence  was  irrevocable.  The  third  

contention was that the Estate Officer did  

2

not give the contesting respondent a proper  

hearing.

38. Learned  Counsel  of  both  AAI  and  MIA  

strongly opposed the aforesaid contentions  

raised  on  behalf  of  the  contesting  

respondent.  

39. This  Court  unfortunately  is  unable  to  

uphold  the  contentions  raised  by  the  

contesting  respondent  in  view  of  the  

following reasons.  

40. The  case  of  the  contesting  respondent  

before all the forums is 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. Therefore, on  

its own showing, the contesting respondent  

completed  the  construction  of  the  

2

restaurant by 1.1.97, which was well within  

the initial licence period, which was upto  

26.11.98. Admittedly thereafter, there have  

been two extensions of the licence period  

upto 26.5.2000. Therefore, the construction  

having  been  completed  and  the  restaurant  

being operational by 1.1.97, there is no  

occasion for the contesting respondent to  

urge  that  it  invested  money  in  the  

construction of the restaurant on the oral  

assurance by the officers of the AAI about  

extension of the licence so as to make it  

irrevocable.

41. In fact no oral assurance of extension of  

licence  is  contemplated  in  the  facts  of  

this  case.  Such  a  contention  is  wholly  

misconceived.   

42. The  AAI  is  a  statutory  body  constituted  

under Section 3 of the Airport Authority of  

2

India Act, 1994 (AAI Act). Under Section  

3(2) of the AAI Act, it is a body corporate  

with  power  to  hold  and  dispose  of  both  

movable  and  immovable  property  and  to  

contract.

43. The  power  of  the  AAI  to  enter  into  

contracts has been conferred under Section  

20 read with Section 21 of AAI Act. As per  

Section 20, the AAI is competent to enter  

into contracts (subject to the provisions  

of Section 21) which may be necessary to  

discharge its functions under the AAI Act.

44. Section 21 of AAI Act lays down the mode of  

executing contracts on behalf of AAI. The  

Section  requires  that  every  contract  on  

behalf  of  AAI  is  to  be  made  by  the  

Chairperson or any other member/officer who  

has been empowered to do so. Further, the  

contracts, which have been specified in the  

2

Regulations,  have  to  be  sealed  with  the  

common seal of AAI.

45. Sub-section (2) of Section 21 of AAI Act  

provides that the form and manner of the  

contract shall be such as may be specified  

by the Regulations.

46. The relevant Regulations have been framed  

by the AAI with the previous approval of  

the Central Government and in exercise of  

the  power  conferred  on  it  under  Section  

42(1) read with Section 42(2)(e) and (4),  

read with Section 21 of the AAI Act, 1994  

and the regulations are called the Airports  

Authority of India (Contract) Regulations  

2003.  Obviously  the  regulations  are  

statutory.

47. The said Regulations specify that contracts  

by AAI are required to be sealed with the  

2

common seal of AAI. They further provide  

that  contracts  are  to  be  made  with  the  

previous approval of the Central Government  

and AAI.

48. Regulation  3(2)  also  state  that  all    

contracts  shall  be  finalized  by  the  

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.

49. Having  regard  to  the  aforesaid  statutory  

framework,  the  case  of  the  contesting  

respondent that it was orally assured of  

extension of licence by some officer of AAI  

is  of  no  legal  consequence.  No  such  

assurance has been proved, even if it is  

proved, such assurance does not and cannot  

2

bind  the  AAI.  Being  a  statutory  

corporation, it is totally bound by the Act  

and the Regulations framed under the Act.

50. The  very  idea  of  a  licence  being  

irrevocable is a bit of a contradiction in  

terms.  From  the  clauses  of  the  licence  

referred to above, it is clear that by its  

terms the licence is revocable. It is well  

known that a mere licence does not create  

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  depend  on  the  

express  terms  of  the  contract.  A  

contractual licence is normally revocable,  

except  in  certain  circumstances  that  are  

3

expressly  provided  for  in  the  Indian  

Easement Act, 1882.

51. A licence has been defined in Section 52 of  

the Indian Easement Act, 1882 as a right to  

do  or  continue  to  do  in  or  upon  the  

immovable  property  of  the  grantor  

something, which, in the absence of such  

right, could be unlawful, but such right  

does not amount an easement or an interest  

in  the  property.  [See  Muskett vs.  Hill  (1839) 5 Bing (NC) 694, p.707 and Heap vs.  Hartley (1889)  42  Ch.  Div.  461,  p.468  (CA)].

52. Following the aforesaid principles and the  

clauses  in  the  licence  agreement,  this  

Court holds that the licence by its very  

term  is  revocable.  The  stand  of  the  

contesting respondent that its licence is  

irrevocable as it has invested money in the  

3

premises and made construction is directly  

contrary to the stand which it took before  

the  Bombay  High  Court  and  which  was  

recorded in the High Court’s Order dated  

12.7.01. It may be noted that when the City  

Civil Court returned the plaint filed by  

the  contesting  respondent  it  came  up  in  

appeal against the said Order before the  

Bombay High Court, it expressly gave up its  

claim of irrevocable licence in order to  

revive the suit. On such stand being taken,  

the High Court remanded the suit for trial  

before  the  City  Civil  Court.  It  is  

therefore  clear  that  the  contesting  

respondent has taken a stand before a Court  

of Law 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 aforesaid  

stand  being  taken,  the  suit  of  the  

3

contesting  respondent  went  on  before  the  

Bombay City Civil Court from 2001 to 2004  

and in view of the interim protection, the  

contesting  respondent  ran  the  restaurant  

during that period.

53. Now the question is whether the contesting  

respondent on a complete volte-face of its  

previous  stand  can  urge  its  case  of  

irrevocable  licence  before  the  Estate  

Officer and now before this Court?

54. The  answer  has  to  be  firmly  in  the  

negative. Is an action at law a game of  

chess? Can a litigant change and choose its  

stand to suit its convenience and prolong a  

civil  litigation  on  such  prevaricated  

pleas?

55. The  common  law  doctrine  prohibiting  

approbation and reprobation is a facet of  

3

the law of estoppel and well established in  

our jurisprudence also.

56. The doctrine of election was discussed by  

Lord Blackburn in the decision of the House  

of  Lords  in  Benjamin  Scarf vs. Alfred  George  Jardine [(1881-82)  7  Appeal  Cases  345], wherein the learned Lord formulated  

“…a party in his own mind has thought that  

he would choose one of two remedies, even  

though  he  has  written  it  down  on  a  

memorandum  or  has  indicated  it  in  some  

other way, that alone will not bind him;  

but so soon as he has not only determined  

to  follow  one  of  his  remedies  but  has  

communicated it to the other side in such a  

way  as  to  lead  the  opposite  party  to  

believe that he has made that choice, he  

has completed his election and can go no  

further; and whether he intended it or not,  

if he has done an unequivocal act…the fact  

3

of his having done that unequivocal act to  

the knowledge of the persons concerned is  

an election.”

57. In  Tinkler vs. Hilder (1849) 4 Exch 187,  Parke, B., stated that where a party had  

received a benefit under an Order, it could  

not claim that it was valid for one purpose  

and invalid for another. (See page 190)

58. In Clough vs. London and North Western Rail  Co. [(1861-73) All ER, Reprint, 646] the  Court referred to Comyn’s Digest, wherein  

it  has  been  stated:-  “If  a  man  once  

determines  his  election,  it  shall  be  

determined forever.” In the said case, the  

question  was  whether  in  a  contract  of  

fraud, whether the person on whom the fraud  

was  practiced  had  elected  to  avoid  the  

contract  or  not.  The  Court  held  that  as  

long  as  such  party  made  no  election,  it  

3

retained the right to determine it either  

way, subject to the fact that an innocent  

third  party  must  not  have  acquired  an  

interest in the property while the former  

party is deliberating. If a third party has  

acquired such an interest, the party who  

was  deliberating  will  lose  its  right  to  

rescind the contract. Once such party makes  

its election, it is bound to its election  

forever. (See page 652)

59. In Harrison vs. Wells, 1966 (3) All ER 524,  Salmon LJ, in the Court of Appeal, observed  

that the rule of estoppel was founded on  

the  well-known  principle  that  one  cannot  

approbate and reprobate. The doctrine was  

further explained by Lord Justice Salmon by  

holding  “it  is  founded  also  on  this  

consideration, that it would be unjust to  

allow the man who has taken full advantage  

of  a  lease  to  come  forward  and  seek  to  

3

evade his obligations under the lease by  

denying that the purported landlord was the  

landlord”. (See page 530)

60. In  Kok Hoong vs. Leong Cheong Kweng Mines  Ltd., (1964 Appeal Cases 993), the Privy  Council held that “a litigant may be shown  

to have acted positively in the face of the  

court,  making  an  election  and  procuring  

from  it  an  order  affecting  others  apart  

from  himself,  in  such  circumstances  the  

court has no option but to hold him to his  

conduct and refuse to start again on the  

basis  that  he  has  abandoned.”  (See  page  

1018)

61. Justice Ashutosh Mookerjee speaking for the  

Division Bench of Calcutta High Court in  

Dwijendra  Narain  Roy vs. Joges  Chandra  De,(AIR 1924 Cal 600), held that it is an  elementary  rule  that  a  party  litigant  

3

cannot be permitted to assume inconsistent  

positions in Court, to play fast and loose,  

to  blow  hot  and  cold,  to  approbate  and  

reprobate to the detriment of his opponent.  

This wholesome doctrine, the learned Judge  

held, applies not only to successive stages  

of the same suit, but also to another suit  

than  the  one  in  which  the  position  was  

taken up, provided the second suit grows  

out of the judgment in the first.  

62. It may be mentioned in this connection that  

all  the  proceedings  pursued  by  the  

contesting respondent in which it took the  

plea of irrevocable licence was virtually  

in clear contradiction of its stand which  

it  took  before  the  Bombay  High  Court  on  

12.7.01 where it had given up the plea of  

‘irrevocable licence’. It is on this plea  

that its suit again became triable by the  

Bombay City Civil Court and all subsequent  

3

proceedings  pursued  by  the  contesting  

respondent followed thereafter.

63. This Court has also applied the doctrine of  

election in C. Beepathumma & Ors. vs. V.S.  Kadambolithaya & Ors., 1964 (5) SCR 836,  wherein this Court relied on Maitland as  

saying:  “That  he  who  accepts  a  benefit  

under a deed or will or other instrument  

must  adopt  the  whole  contents  of  that  

instrument,  must  conform  to  all  its  

provisions and renounce all rights that are  

inconsistent with it.” (Maitlands Lectures  

on  Equity,  Lecture  18).  This  Court  also  

took note of the principle stated in White  

& Tudor’s Leading Case in Equity volume 18th  

edition at p.444 – wherein it is stated,  

“Election is the obligation imposed upon a  

party by Courts of equity to choose between  

two inconsistent or alternative rights or  

claims  in  cases  where  there  is  clear  

3

intention  of  the  person  from  whom  he  

derives one that he should not enjoy both…

That he who accepts a benefit under a deed  

or will must adopt the whole contents of  

the instrument.”

64. In M/s New Bihar Biri Leaves Co. & Ors. vs.  State of Bihar & Ors., (1981) 1 SCC 537,  this  Court  observed  that  it  is  a  

fundamental  principle  of  general  

application  that  if  a  person  of  his  own  

accord, accepts a contract on certain terms  

and works out the contract, he cannot be  

allowed to adhere to and abide by some of  

the  terms  of  the  contract  which  proved  

advantageous to him and repudiate the other  

terms of the same contract which might be  

disadvantageous  to  him.  The  maxim,  qui  

approbat non reprobat (one who approbates  

cannot reprobate), applies in our laws too.

4

65. Therefore  the  conduct  of  the  contesting  

respondent  in  view  of  its  inconsistent  

pleas is far from satisfactory. By taking  

such pleas, the contesting respondent has  

succeeded in enjoying the possession of the  

premises for the last 10 years even after  

the expiry of its licence on 26.5.2000.

66. The complaint of the contesting respondent  

that Mr. K.K. Gupta, 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 has given adequate reasons for not  

summoning the officers of AAI by holding  

that beyond 26.5.2000, there is no written  

extension of the licence period. The Estate  

Officer held, and in our view rightly, that  

when written documents are there, any oral  

assurance, which purports to contradict the  

4

written documents need not be considered.  

Apart  from  that,  this  Court  has  already  

recorded that in the facts of the case and  

in  the  context  of  the  statutory  

dispensation discussed above, there is no  

scope  for  an  oral  extension  of  licence.  

Therefore,  the  reasoning  given  by  the  

Estate  Officer,  for  not  calling  the  

officers of AAI to prove the case of oral  

extension  of  licence  of  the  contesting  

respondent, is sound and does not call for  

any interference by this Court even when it  

acts as an appellate authority.

67. The Estate Officer also declined to issue  

directions for inspection of documents, as  

prayed for by the contesting respondent on  

valid grounds. 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  4

of his enquiry, the Estate Officer thought,  

and rightly so, that its enquiry cannot be  

widened  by  including  a  plea  of  

discrimination under Article 14 raised by  

the contesting respondent.  

68. Apart from that, this Court also does not  

find  any  merit  in  the  plea  of  

discrimination  raised  by  the  contesting  

respondent,  by  contending  that  cases  of  

other licensees have been extended whereas  

in  its  case,  the  licence  has  not  been  

extended.  Such  a  plea  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  

4

are  given  the  same  treatment,  a  plea  of  

discrimination can be made out.

69. We  have  already  discussed  that  the  

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 a valid plea of  

discrimination,  when  admittedly  the  

contesting respondent has no right in law  

to get an extension.  

70. Now  the  last  point  that  remains  is  the  

authority of Mr. K.K Gupta to function as  

an Estate Officer. This is a point more of  

desperation than of substance.  

4

71. Under  Section  3  of  the  1971  Act,  the  

Central  Government’s  power  to  appoint  an  

Estate Officer is provided.  

72. From the compilation of notifications that  

have been filed in this case by the learned  

Attorney  General,  appearing  for  AAI,  it  

transpires  that  the  Ministry  of  Civil  

Aviation and Tourism, Department of Civil  

Aviation,  issued  a  notification  dated  

1.7.97,  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  15.5.07,  published  in  the  Official  

Gazette,  Central  Government  amended  its  

previous  notification  and  for  the  words  

‘Airport  Director’,  the  words  ‘Deputy  

General  Manager  (Land  Management)’  were  

substituted.

4

73. It  has  not  been  argued  by  the  learned  

Counsel for the contesting respondent that  

while issuing a notification under Section  

3, the Central Government will have to name  

a  person  or  an  individual  as  an  Estate  

Officer.  The  appointment  of  such  Estate  

Officer is by designation only. It is not  

in  dispute  that  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 Deputy  

General Manager (Land Management). This is  

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. There  

can be no dispute about his authority to do  

so  since  by  the  subsequent  notification  

dated 15.5.07, the words ‘Airport Director’  

have  been  substituted  for  words  ‘Deputy  

4

General Manager (Land Management)’. Hence,  

there is no substance in these contentions  

of the contesting respondent.

74. This  Court  even  acting  as  an  Appellate  

Authority does not discern any error in the  

Order dated 29.4.10 of the Estate Officer.  

The  appeal  filed  by  the  contesting  

respondent  before  the  City  Civil  Court,  

Mumbai  and  transferred  to  this  Court  is  

therefore dismissed.  

75. However, from the facts discussed above, it  

is amply demonstrated that the contesting  

respondent has blown hot and cold by taking  

inconsistent  stand,  and  has  therefore  

prolonged several proceedings for more than  

a decade. This Court is constrained to hold  

that  it  did  not  pursue  its  proceedings  

honestly in different fora. Therefore, the  

appeal, being Misc. Appeal No. 50 of 2010,  

filed by the contesting respondent before  

the  Principal  Judge,  City  Civil  Court,  4

Mumbai, which was transferred to this Court  

by this Court’s order dated 11.05.2010 and  

formed part of these appeals, 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  

within a period of two months from date.

76. The  civil  appeals  filed  by  Airport  

Authority of India and Mumbai International  

Airport are allowed. All interim orders are  

vacated.  

.......................J. (G.S. SINGHVI)

.......................J. New Delhi (ASOK KUMAR GANGULY) September 22, 2010

4