TMI Blog2010 (9) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of the 1971 Act to the contesting respondent. 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 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 applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding 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, 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 proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 (Cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 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. ..... 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