1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10423 OF 2009 The Mumbai International Airport Private Limited .. Petitioner versus S.S.Hiremath (Swami)and others .. Respondent Mr.Birendra Saraf i/b Wadia Ghandy and Co for Petitioner Mr.Chirag Shah i/b J.J.Shah for respondents no. 1 and 2 CORAM : A.S.OKA, J. DATE : 2nd March 2010 JUDGEMENT : . By this writ petition under Article 227 of the Constitution of India, the petitioner has taken an exception to the judgment and order dated 14th of November 2009 passed by the trial Court by which the Chamber Summons taken out by the petitioner under rule 10 (2) of Order I of the Code of Civil Procedure, 1908 (hereinafter referred to “as the said Code”) has been dismissed. 2. The first and second respondents are the original plaintiffs. The third respondent, the Airport Authority of India is the defendant. The suit relates to a premises along with the plot of land bearing survey No.94, Hissa No. 10, CTS No. 636 admeasuring 270.7 sq.ft. situated at Chakala, Andheri, Mumbai. According to the case of the first and second respondents, by an 2 agreement dated 4th September 2001 executed by the Tarun Bharat Co- operative housing society limited as lessors, the first and second respondents have been placed in possession of the suit property as the lessees. Reliance has been placed on various documents to establish the possession of the first and second respondents. It is alleged that the third respondent has threatened to dispossess the first and second respondents of the suit property. Therefore, a perpetual injunction has been claimed in the suit for protecting the alleged possession of the first and second respondents against the third respondent. 3. In the said suit, the petitioner filed a Chamber Summons. The prayer in the chamber summons was for directing the first and second respondents to implead the petitioner as a party defendant to the pending suit. In affidavit in support of the chamber summons, it was contended that the third respondent and the petitioner had entered into an Operation, Management and Development agreement dated 4th April 2006 for operating, maintaining, developing, modernizing, designing, constructing , financing and managing the Chhatrapati Shivaji international airport at Mumbai for a period of 30 years. It is stated that on the basis of the said agreement, the third respondent under a Lease Deed dated 26th April 2006 demised all the airport land including land bearing CTS no. 636 at village Chakala, Andheri unto the petitioner for the effective implementation of the agreement dated 4th April 2006. It is submitted that as the petitioner is the lessee of the suit property which is a part of CTS no. 636, the petitioner has a direct interest in the suit property. It is 3 submitted that the petitioner is a necessary party to the suit. It is submitted that in order to ensure that the modernization and development of the Mumbai airport is implemented effectively, it is necessary for the petitioner to ensure that maximum land is available for the purposes of the airport. 4. The first and second Respondents opposed the Chamber Summons by filing an affidavit in reply of the second respondent. It was submitted that it is open for the petitioner to initiate proceedings in the court of law against the first and second respondents if they have any right in respect of the suit property. It is stated that the petitioner has acquired the property on "as is where is basis". It is submitted that the petitioner had knowledge about the rights of the first and second respondents in the suit property. It is alleged that even the third respondent had all the knowledge about the encroachments upon its property, but no action has been taken to remove the encroachers. It was submitted by the said respondents that at the most the petitioner may support the case of the third respondent by filing an affidavit. The second and third respondents prayed for dismissal of the Chamber Summons. 5. The learned counsel appearing for the petitioner submitted that the third respondent has executed a lease deed dated 26th April 2006 in respect of airport land in favour of the petitioner for a period of 30 years which is renewable at the option of the petitioner. He submitted that the lease also relates to the land bearing CTS no. 636 of village Chakala. He submitted that the lease has been executed along with encumbrances on 4 the demised premises. He submitted that the learned trial judge committed an error by holding that the encroached portion has been excluded while executing the lease deed in favour of the petitioner. It is submitted that there is no such exclusion. He submitted that the petitioner being the lessee has a direct interest in the subject matter of the suit and therefore, the petitioner is a necessary or a proper party. He placed reliance on a decision of this Court dated 17th July 2009 in appeal from order No. 254 of 2009 holding that in a similar suit, the petitioner was required to be impleaded as a party. 6. The learned counsel for first and second respondents supported the impugned order. He invited the attention of the Court to clause no. 2.1.1 of the lease deed. He submitted that the lease does not relate to the lands along with constructions already granted to any third party. He submitted that the lease deed specifically provides that the petitioner has taken the property on "as is where is basis". He invited the attention of the Court to the clause 8.1.8 and submitted that the said clause indicates that the lease will not relate to the area which is already encroached upon. He submitted that the trial Court has rightly rejected the Chamber Summons. 7. I have given careful consideration to the submissions. There does not seem to be any dispute that the lease deed dated 26th April 2006 on which reliance has been placed by the petitioner also relates to the land bearing CTS no. 636 of village Chakala. The suit property is a part of the 5 said CTS no. 636. The first and second respondents claim to be in possession on the basis of a lease deed executed by a third party. In affidavit in support of the Chamber Summons, the petitioner placed reliance on lease deed dated 26th April 2006 and it is specifically contended that the suit property forms part of the land subject matter of the lease deed. In the reply filed by the second respondent, it is not at all the case made out that the lease deed dated 26th of April 2006 does not cover the suit property. It is merely contended that in the lease deed dated 26th April 2006 it is specifically stated that the petitioner has taken the demised property on "as is where is basis" and therefore , the petitioner has no right to dispossess the second and third respondents. 8. Clauses 2.1.1 and 8.1.8 of the lease read thus: “2.1.1.In consideration of the Lease Rental, OMDA and the covenants and warranties on the part of the Lessee therein and herein, the Lessor, in accordance with the AAI Act and the terms and conditions set forth herein, hereby, demise to the Lessee, commencing from the Effective Date, all the land (alongwith any buildings, constructions or immovable assets, if any, thereon) which is described, delineated and shown in the Schedule 1 hereto, other than (i) any lands (along with any buildings, constructions or immovable assets, if any thereon) granted to any third party under any Existing Lease(s) constituting the Airport on the date hereof; and (ii) any and all of the Carved Out Assets and the underlying land together with any buildings, constructions or immovable assets thereon, on an “as is where is basis” together with all Encumbrances thereto, (hereinafter “Demised Premises”) to hold the said Demised Premises, together with all and singular rights, liberties, privileges, easements and appurtenances whatsoever to the said Demised Premises, hereditaments or premises or any part thereof belonging to or in anyway appurtenant thereto or enjoyed therewith, for the duration of the Term for the sole purpose of the Project, and for such other purposes as are permitted under this 6 Lease Deed. 8.1.8. It shall (i) keep and maintain the Demised Premises and the buildings and structures thereon in good and habitable condition at all times and (ii) shall ensure that the Demised Premises will be free from encroachments at all times (except encroachments existing on the date hereof) and to the extent that there occur and/or exist any Encumbrances on the Demised Premises shall use its best endeavours to remove such Encumbrances from the Demised Premises, as soon as practicable.” The clause 2.1.1 creates a lease in respect of all the lands along with buildings, constructions and immovable assets other than granted to any third party under any existing lease. Thus, the lands which are already leased by the third respondent have been excluded. It is not the case of the first and second respondents that they are the lessees of the third respondent. The reference to "as is where is basis" indicates that the petitioner has taken the lease with encumbrances. The clause 8.1.1 incorporates an obligation of the petitioner to keep the demised premises free from encroachments (except encroachments existing on the date of lease). The meaning of this clause is that the petitioner will not be under an obligation to remove existing encroachments. There is no provision under the lease deed which prevents the petitioner from taking steps to remove even the existing encroachments. Thus, prima facie, it appears that the petitioner is the lessee of the third respondent in respect of the suit premises and therefore, the petitioner has a direct interest in the subject matter of the suit. The suit has been filed for preventing third respondent lessor from demolishing the structure forming part of the suit premises. The third respondent has executed a lease in favour of the petitioner. In the circumstances, considering the frame of the suit, the 7 petitioner is a necessary party or at least a proper party to the suit. Hence the petition must succeed and I pass following order: : O R D E R : (i) The Impugned Order dated 14th November 2009 is quashed and set aside and the Chamber Summons no. 443 of 2009 is made absolute in terms of prayer (a) thereof. (ii) The second and third respondents are directed to carry out the amendment to the plaint within a period of two weeks from the date on which the writ of this order is received by the trial Court. (iii) The observations made in this order shall not be construed as any finding on the rights of the parties. The observations made in this order as regards the title are only tentative observations made for the purposes of deciding the controversy involved in the Chamber Summons. (vi) The writ petition is allowed in above terms with no orders as to costs. (A.S.OKA, J)