Saturday, September 15, 2018

Mumbai Int’l Airport Is Built Challenge The 55-Yr-Old Acquisition; Bombay HC Imposes Cost

Original Owners Of Land Where Mumbai Int’l Airport Is Built Challenge The 55-Yr-Old Acquisition; Bombay HC Imposes Cost 

The Bombay High Court recently dismissed a writ petition filed by original owners of lands acquired for the purpose of building the Chhatrapati Shivaji Maharaj International Airport and imposed a cost of Rs 10,000 on them for challenging the said acquisition on untenable grounds.
A division bench of Justice AA Sayed and Justice SC Gupte was hearing the petition challenging the said acquisition that took place under the Requisitioning and Acquisition of Immovable Property Act, 1952. While the acquisition took place in 1953, it was challenged only in 2015.
Petitioner’s advocate Zal Andhyarujina submitted that following the acquisition, the international airport was constructed and was being operated under the Airport Authority of India till 2006.  However, by an agreement dated April 4, 2006, titled as Operation, Management and Development Agreement (OMDA), between the Airport Authority of India (AAI) and Mumbai International Airport Pvt. Ltd., the AAI gave Mumbai International Airport exclusive right and authority during the term of OMDA to undertake some of the functions of the Airport Authority of India concerning operation, maintenance, development, upgrade, etc., of the international airport and perform services and activities constituting aeronautical services and non­aeronautical services at the airport.
Mumbai International Airport is a company established through the equity of AAI and other private promoters.
According to the petitioners, the development of the international airport in terms of OMDA is complete and a large part of the land originally acquired has been lying unutilised. It was further submitted by Andhyarujina that interested parties have been invited to submit applications for participation in a competitive bidding process for five land parcels forming part of the land of Terminal 2 of the international airport for commercial exploitation.
Thus, it was argued that these lands, originally acquired for the public purpose of an airport, are being diverted to a purely private commercial user. The petitioners contended that this diversion amounts to an act of fraud and since the land is no longer to be used for a public purpose, it must be reverted to the original owners, i.e., the petitioners.
After going through all the contentions, the court referred to the Supreme Court’s decision in Northern Indian Glass Industries vs. Jaswant Singh, and noted how the apex court had explained the Land Acquisition Act by quoting from its decision in Gulam Mustafa vs. State of Maharashtra in 1976.
The court then said:
“There is no provision of law, which enables the owner of a land, which is acquired by the State for a public purpose under the Act, to reclaim the same at any time in future on the ground of its subsequent change of user or on the ground that the original public purpose, for which it was acquired, is no longer valid or relevant. If the land vests in the State upon notice under Section 7, the State cannot be divested of its title for non-user of the land for the purpose for which it is required.  Even if the land is not used for such purpose, the landowner does not get any right to ask for re-vesting of the land in him and to ask for restitution of the possession.”
The bench further noted that if any land originally acquired for a public purpose is subsequently fraudulently diverted for a private purpose, then it may be open to any public-spirited individual to approach the high court in its writ jurisdiction by filing public interest litigation.
“But that is not how the petitioners have approached this court. The Petitioners are not guided by any public spirit,” the court said.
Thus, the court decided that since the challenge to the said acquisition was on untenable grounds and that, too, after so many years, the petitioners must be saddled with costs. But after petitioner’s counsel sought some leniency, the court imposed a cost of Rs 10,000 only to be paid to the Union of India.

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