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TMI Blog2010 (9) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Ai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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 Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issed 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 statutory. 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. R egulation 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 AA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 pleas? 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 const ..... 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