1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.418 OF 2008 IN NOTICE OF MOTION NO.82 OF 2007 IN SHORT CAUSE SUIT NO.45 OF 2007 Mumbai International Airport Pvt. Ltd. ..Appellant. Vs. Indamer Company Pvt. Ltd. & Anr. ..Respondents. Mr.Navroz Seervai, Senior Counsel with Mr.Birendra Saraf and Mr.Abhijeet Marathe i/b M/s.Wadia Gandhy & Co. for the Appellant. Mr.T. N. Subramaniam with Mr.P. S. Dani i/b M/s.Haresh Mehta & Co. for Respondent No.1. Mr.Mayur Shetty i/b M/s.M.V. Kini & Co. for Respondent No.2. CORAM : S.J. VAZIFDAR, J. DATE OF RESERVING THE JUDGMENT : 12TH JUNE, 2008 DATE OF PRONOUCEMENT : 2ND JULY, 2008 ORAL JUDGEMENT :- 2 Respondent no.2 is the Airports Authority of India. The Appellant is the first defendant in the suit. Respondent no.1 is the Plaintiff and Respondent no.2 is the second Defendant. 2. The question that falls for consideration is whether the Appellant is entitled to dispossess or interfere with the admitted possession of Respondent no.1 of the suit premises otherwise than by due process of law on the ground that the period of the licence in favour of Respondent no.1 has expired. I have answered the question in the negative. The submissions on behalf of the Appellant are set out in paragraph 13 of this judgment. 3. This is the first Defendant's appeal against the order of the learned judge of the Bombay City Civil Court restraining the Defendants from acting pursuant to two notices dated 10.7.2007 and 13.9.2007 and/or from interfering with the possession and/or activities of the Plaintiff/Appellant and/or preventing the entry of the officers and the staff members and authorised visitors of the Plaintiff at/to the operational area of the international airport in Mumbai in any manner. The interim relief is in terms of the permanent injunction sought by the Appellant/Plaintiff. In addition the Appellant has also sought a declaration that the said notices are illegal, null and void and not binding on it. 3 4. As the matter involved the activities at an international airport in the city, the appeal was admitted and heard expeditiously. Mr.Dwarkadas and Mr. Samdani appear in two companion matters which, though not identical to this matter, also raise the main aspect which falls for consideration herein. In view thereof, I permitted them to address me although this judgment does not dispose of those matters. FACTS 5(A). A licence agreement was executed between the Appellant and Respondent no.2 on 13.8.2001 in respect of a hangar space admeasuring 1145.50 square metres at the airport. The duration of the licence was from 9.5.2001 to 8.5.2002. The General Terms and Conditions in Annexure - I to the licence agreement were incorporated therein. The agreement expressly stated that nothing therein contained would constitute a partnership, lease or any other relationship between the parties except that of licensor and licensee and that the licence shall not be construed in any way as giving or creating any other right or interest in the premises in, to or in favour of the licensee but shall be construed to be only as a licence on the terms and conditions contained therein. 4 Respondent no.2 was entitled to terminate the licence by giving three calendar months notice in writing at any time, without assigning any reasons. Respondent no.2, its servants and agents were entitled at all times to have absolute rights of entry in the premises. Clause 18 provided that the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and the rules framed thereunder would be applicable. Clause 1 of the general terms and conditions provided that the licensee, its servants and agents would be entitled to use all ways, parts and passages as may from time to time be maintained on the airport ground subject to such rules and regulations as may be imposed by the airport authorities. (B). The licence was admittedly renewed by Respondent no.2, the last renewal being in the month of January 2005 till 30.6.2005. Though the licence was not renewed thereafter, admittedly Respondent no.1 continued to remain in possession of and operated from the said premises upto date and paid the licence fee till September 2007. 6. Section 12A was inserted with effect from 1.7.2004 in The Airports Authority of India Act, 1994 which reads as under : - “12A. Lease by the Authority.-(1) 5 Notwithstanding anything contained in this Act, the Authority may, in the public interest or in the interest of better management of airports, make a lease of the premises of an airport (including buildings and structures thereon and appertaining thereto) to carry out some of its functions under section 12 as the Authority may deem fit : Provided that such lease shall not affect the functions of the Authority under section 12 which relates to air traffic service or watch and ward at airports and civil enclaves. (2) No lease under sub-section (1) shall be made without the previous approval of the Central Government. (3) Any money, payable by the lessee in terms of the lease made under sub-section (1), shall form part of the fund of the Authority and shall be credited thereto as if such money is the receipt of the Authority for all purposes of section 24. (4) The lessee, who has been assigned any function of the Authority under sub- section (1), shall have all the powers of the Authority necessary for the performance of such function in terms of the lease.” 7. Pursuant to section 12A, the Appellant and Respondent no.2 on 4.4.2006 entered into an Operation, Management and Development Agreement (OMDA) in respect of the Mumbai Airport. Under the OMDA, Respondent no.2 had agreed to lease all the airport land to the Appellant and the Appellant was entrusted 6 with the task of managing, operating, developing and modernizing the Mumbai Airport. Pursuant thereto, a lease deed dated 26.4.2006 was executed between the Appellant and Respondent No.2 whereunder all Mumbai airport land including the suit premises have been demised in favour of the Appellant for a term of thirty years, extendable for a further period of thirty years. Under the said lease deed, the entire airport land excluding the existing leases and the carved out assets as defined thereunder have been demised in favour of the Appellant. There is no dispute that the suit premises are neither under an existing lease nor a carved out asset as defined in the lease deed and that the suit premises are demised to the Appellant under the said lease deed. 8. According to the Appellant the payment and acceptance of licence fees after 30.6.2005 was only at sufferance on the part of Respondent no.2 and the Appellant. It is further submitted on behalf of the Appellants that after 30.6.2005 the licence in favour of Respondent no.2 was revocable at any time by Respondent no.2 and after 3.5.2006 also by the Appellant. 9. By the impugned letter dated 10.7.2007 the Appellant called upon Respondent no.1 to vacate the suit premises within sixty days from the receipt of the letter stating that the same were 7 required for the development of the airport and that the existing facilities thereon have to be moved out. Respondent no.1 by a letter dated 5.9.2007 refused to comply with the said request stating that it had been paying the lease charges to date. Respondent no.1 further stated that the other organizations who had facilities adjacent to theirs were not given similar notices and expressed a grievance that it was being singled out for eviction. By the other impugned letter dated 13.9.2007 the Appellant denied the assertions raised by Respondent no.1 and once again called upon Respondent no.1 to vacate the suit premises stating that the allotment had long since expired. PROCEEDINGS 10. It is in these circumstances that Respondent no.1 filed the suit and took out the said Notice of Motion. By an order dated 22.10.2007 ad-interim reliefs were refused. Respondent no.1 filed Appeal from Order No.66 of 2008 before this Court. By an order dated 23.1.2008, the parties were directed to maintain the status quo until further orders. By an order dated 23.1.2008 the Appeal from Order was disposed of by directing the trial Court to hear the Notice of Motion expeditiously and continuing the status quo till the disposal of the Notice of Motion by the trial Court. 8 11. Ultimately, the Notice of Motion was heard and the impugned order was passed making the Notice of Motion absolute in terms of prayer (a) which reads as under :- "(a) Pending the hearing and final disposal of the above named suit, this Hon'ble Court be pleased to grant temporary injunction and order of this Hon'ble Court thereby restraining the defendants, their servants/agents/persons claiming through or by them, from acting in any manner whatsoever pursuant to notice dated 10.7.2007 and 13.9.2007 and/or interfering with the possession and/or activities of the plaintiff and/or preventing the entry of the officers and staff members and authorised visitors of the plaintiff at/to the operational area of Chattrapati Shivaji International Airport Mumbai in any manner whatsoever." 12. Prayer (a) falls into two parts. The first pertains to a challenge to the two notices dated 10.7.2007 and 13.9.2007. The second pertains to Respondent no.1's possession and activities on the suit premises. The first part of the injunction is based on the premise that the Appellant is not vested with the power to evict Respondent no.1 under the provisions of the Airports Authority of India Act. This point is decided against Respondent no.1 by a Division Bench judgment of this Court dated 5.6.2008 in the case of Flemingo Duty – Free Shop Pvt. Ltd. & Anr. v. Union of India & Ors., in Writ Petition No.617 of 2007. 9 Further, Mr.Subramaniam did not deny that the injunction protecting Respondent no.1's possession in respect of the suit premises ought in any event to be qualified with the rider that the same ought not to be disturbed except by due process of law. 13. Mr. Seervai submitted that the licence having come to an end by efflux of time and by virtue of it having been terminated as aforesaid, Respondent no.1 is a trespasser in the suit premises and has no right to either remain in occupation/possession or to protect its possession thereof in any manner. He submitted that the Appellant is entitled to interfere with or recover possession of the premises from Respondent no.1 without recourse to due process of law. In support of his submission he contended that :- (A) There is no reason to presume that the Appellant will interfere with the possession of Respondent no.1 otherwise than in accordance with law. (B) The licence having come to an end, Respondent no.1 cannot be said to be in settled possession. (C) The entry of Respondent no.1, its staff, agents and visitors to the suit premises is regulated and controlled by the Appellant and other authorities. Respondent no.1 therefore was not and is not in exclusive possession or settled possession of the 10 suit premises. (D) The authorities and the law that mandate recourse to due process of law for dispossessing a party in settled possession apply only to cases where the party has a right in respect of the premises or where the law specifically mandates the same such as in the case of a tenant whose tenancy has come to an end. In other words, they do not apply to licensees whose licence has come to an end. (E) The authorities and the law that mandate recourse to due process of law apply only to a party who is dispossessed otherwise than by due process of law seeking restoration of possession and do not entitle a party to an injunction protecting himself against interference with his possession forcibly or otherwise than by due process of law. (F)(i) Merely because a party may be entitled to seek repossession under section 6 of the Specific Relief Act, it would not necessarily follow that he is entitled to an injunction against threatened dispossession without recourse to due process of law. (ii) Respondent no.1 has not satisfied the requirements necessary for the grant of the injunction. Re : Proposition (A) 11 14. I had asked Mr.Seervai at the outset whether the Appellant was willing to make a statement that it would not disturb Respondent no.1's possession of the suit premises except by due process of law. He stated that the Appellant was not willing to make such a statement. 15. Mr. Subramaniam had however, upon taking instructions, made a statement that the moment the work on the taxiway commences and is to take place on the premises, Respondent no.1 would without prejudice to all its rights and contentions, vacate the premises and hand over the same to the Appellant/Respondent no.2 – Airports Authority of India, as the case may be. The statement is obviously fair and is a complete answer to Mr. Seervai's elaborate argument on the aspect of the premises being required for an important public purpose. I asked Mr. Seervai whether the Appellant was willing to accept this statement and, subject to adopting proceedings in accordance with law, and without prejudice to its rights and contentions, the Appellant was willing to make a statement that it would not dispossess Respondent no.1 except by due process of law. Mr. Seervai, on taking instructions, refused to make the 12 statement. It is clear therefore that the Appellant desires to interfere with the possession of Respondent no.1 without recourse to due process of law. 16. Mr. Seervai suggested that recourse to legal proceedings was not the only manner of adopting due process of law. If a party acts in accordance with its legal rights it adopts due process of law. 17. I do not agree. The error in this submission lies in equating the requirement of recourse to due process of law with permitting a party to act as per his assumed legal rights. The requirement to take recourse to due process of law does not include the right of a person to enforce the obligation of another towards him on his judgment, perception or assessment of what the legal rights and obligations between them are. The submission posits in a person the right to decide the validity of his claim and to enforce the same himself. The submission if accepted would be destructive of the rule of law and would nullify the effect of the long line of judgments I will refer to while dealing with the other propositions. 18(A). In East India Hotels v. Syndicate Bank, 1992 Supp.(2) 13 SCC, 29, K. Ramaswamy, J. held :- “30. What is meant by due course of law? Due course of law in each particular case means such an exercise of the powers by duly constituted tribunal or court in accordance with the procedure established by law under such safeguards for the protection of individual rights. A course of legal proceedings according to the rules and principles which have been established in our system of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must thus be a tribunal competent by its constitution, that is by law of its creation, to pass upon the subject matter of the suit or proceeding; and, if that involves merely a determination of the personal liability of the defendant, it must be brought within its jurisdiction by service of process within the State, or his voluntary appearance. Due course of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty or property in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right determination of the controversy by proof, every material fact which bears on the question of fact or liability be conclusively proved or presumed against him. This is the meaning of due course of law in a comprehensive sense. 31. In Rudrappa v. Narsingrao, (1904) 7 BLR 12 a Division Bench consisting of Sir L.H. Jenkins, C.J., as he then was, and Batchelor, J. held that the words “due course of law” in Section 9 of the Special Relief Act (old Act), “as merely equivalent to the word ‘legally’ is, we think, to deprive them of a 14 force and a significance which they carry on their very face. For a thing, which is perfectly legal, may still be by no means a thing done ‘ in due course of law’; To enable this phrase to be predicated of it, it is essential, speaking generally, that the thing should have been submitted to the consideration and pronouncement of the law, and the ‘due course of law’ means, we take it, the regular normal process and effect of the law operating on a matter which has been laid before it for adjudication.” (emphasis supplied) In that case when the owner unilaterally dispossessed the tenant holding over, the Court upheld the decree for possession under Section 9. The Court future (further) held that “That, in our opinion, is the primary and natural meaning of the phrase, in strict compliance of law though it may be applied in a derivative or secondary sense to other proceedings held under the direct authority of the law; in this sense it may be said, for instance, that revenue or taxes are collected in due course of law. ””(emphasis supplied) I may be permitted to take the liberty of continuing the above quotation from the judgment of the Division Bench of this Court in Rudrappa v. Narsingrao Ramchandra, (1904)7 BLR, 12 :- “But this latter use of the expression has clearly no bearing upon the words in the 15 particular context in which they occur in section 9; there we think they must be read in their primary sense as referring to the process and operation of the law invoked by the ordinary method of a civil suit.” It would be useful to refer also to the following words at page 16 of the report in Rudrappa' s case :- “It is clear, then, from these decisions that the expression “due course of law” was interpreted as being in contrast with the acting of one's own authority or acting without the intervention of the Court, in other words, the construction approved was that which we have already indicated as the plain meaning of the language. Reference may also be made to the observations of Edge C.J. In Wali Ahmadkhan v. Ajudhia Kandu (5) (1891) 13 All, 537.” (B). In view of the conflicting judgments in that case by K. Ramaswamy, J. and N.N. Kasliwal, J., the matter was directed to be placed before the Hon'ble the Chief Justice of India for constituting a larger Bench for resolving the conflict. However, the judgment delivered by K. Ramaswamy, J. was cited with approval in atleast two cases, viz. R.V. Bhupal Prasad v. State of Andhra Pradesh & Ors., (1995)5 SCC, 698 and Annamalai Club v. Government of Tamil Nadu & Ors. (1997) 3 SCC, 169 which I shall refer to shortly. 19. Filing a suit or legal proceedings including in a Civil 16 Court or before a Tribunal may not be the only course for adopting due process of law. If a statute empowers dispossession of a party in a particular manner, recourse thereto, would also constitute due process of law for it is a process recognized by law. For instance, the Land Acquisition Act makes specific provisions for the manner in which possession of the land acquired thereunder may be taken. Sections 36 and 47 of the Act read as under :- “36. Power to enter and take possession, and compensation on restoration.—(1) On payment of such compensation, or on executing such agreement or on making a reference under Section 35, the Collector may enter upon and take possession of the land, and use or permit the use thereof in accordance with the terms of the said notice. (2) On the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage (if any) done to the land and not provided for by the agreement, and shall restore the land to the persons interested therein: Provided that, if the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term, and if the persons interested shall so require, the appropriate Government shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose or for a company. 47. Magistrate to enforce surrender.—If the 17 Collector is opposed or impeded in taking possession under this Act of any land, he shall, if a Magistrate, enforce the surrender of the land to himself, and, if not a Magistrate, he shall apply to a Magistrate or (within the towns of Calcutta, Madras and Bombay) to the Commissioner of Police and such Magistrate or Commissioner (as the case may be) shall enforce the surrender of the land to the Collector.” 20. In the present case, neither Respondent no.2 nor the Appellant have been conferred such powers. In fact, the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 has been made applicable. Thus any act on the part of the Appellant dispossessing Respondent no.1 or interfering with its possession unilaterally, based on the Appellant's perception of its legal rights qua Respondent no.1 would not be by due process of law. Re : Propositions (B), (C), (D) & (E) 21. I intend dealing with these four propositions together as the authorities deal with more than just one of them and the nature of the authorities and the submissions based on them require them to be considered as a whole. 22. I will first deal with the authorities cited by Mr.Subramaniam which in my opinion, militate against Mr. Seervai's submissions and require me to protect Respondent no.1 18 against being dispossessed otherwise than by due process of law. I will then deal with the authorities cited on behalf of the Appellants. 23(A). The judgment of a Division Bench of this Court in K.K. Verma v. Union of India, AIR 1954 Bombay 358 has been followed consistently including by various judgments of the Supreme Court. Chief Justice Chagla, speaking for the Court, held that there is a clear and sharp distinction between a trespasser and an erstwhile tenant and that whereas a trespassers possession is never juridical and never protected by law, the possession of an erstwhile tenant is protected by law. It was noted that the law in this regard in India was entirely different from the position in English law. It was held that as far as the Indian law is concerned, an erstwhile tenant can never become a trespasser. In India, a landlord can only eject his erstwhile tenant by recourse to law and by obtaining a decree for ejectment. It is important to note that in paragraph 8 the Division Bench noted that there did not seem to be any defence to a suit which may have been filed by the Union of India. This fact did not prevent the Division Bench from making the above observations. (B). Mr. Seervai contended that this judgment would apply only in the case of erstwhile tenants in view of the provisions of the 19 rent laws which mandate any landlord taking possession only pursuant to a decree for eviction and would not apply to cases of erstwhile licensees. I do not agree. (C). Firstly, the ratio of the judgment has been applied, as I shall indicate later, to other cases as well. Secondly, it is important to note that the ratio was based not only on the provisions of the rent law in force at that time but also on the provisions of section 9 (old) which corresponds to the present section 6 of the Specific Relief Act. The Division Bench held :- “4.