Thursday, September 23, 2010

Mumbai International Airport Pvt. Ltd. V/S M/s Golden Chariot Airport & Anr.(Arising out of Special Leave Petition (C) No.11663/09) September 22, 2010


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)

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)



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


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.

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

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

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
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

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.

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

10. 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.

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.

Hearings were conducted on 26.10.04 and


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

Estate Officer heard the case of the

contesting respondent and rejected the


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


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


17. Aggrieved thereby, the contesting

respondent filed an appeal under Section 9

of the 1971 Act before the Bombay City

Civil Court (M.A. No. 39/2006), which was

dismissed by the Bombay City Civil Court on


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.

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

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

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


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

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

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

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


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,

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

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
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
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

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,

the learned Counsel for AAI took some time

to produce the necessary notifications

showing the appointment of the Estate


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

not give the contesting respondent a proper


38. Learned Counsel of both AAI and MIA

strongly opposed the aforesaid contentions

raised on behalf of the contesting


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

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


41. In fact no oral assurance of extension of

licence is contemplated in the facts of

this case. Such a contention is wholly


42. The AAI is a statutory body constituted

under Section 3 of the Airport Authority of

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


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

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


47. The said 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.

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

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

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


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

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

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


55. The common law doctrine prohibiting

approbation and reprobation is a facet of

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

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

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

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


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

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

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

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.

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

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
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

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.

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


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

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,
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



September 22, 2010


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