Mumbai International Airport Pvt. Ltd vs Regency Convention Centra & Hotels & Ors

3. Pursuant to the competitive bidding process, the Chhtrapati Shivaji International Airport, Mumbai was handed over to the appellant for operation, maintenance, development and expansion into a world class airport under an agreement dated 4.4.2006. In pursuance of it, AAI entered into a lease deed dated 26.4.2006 leasing the Mumbai airport to the appellant on "as is where is" basis for a period of 30 years. The subject matter of the lease was described as "all the land (along with any buildings, constructions or immovable assets, if any, thereon) which is described, delineated and shown in Schedule I 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 3 carved out assets". Schedule I to the lease deed, instead of giving a detailed description of the demised property, referred to the map demarcating the demised premises annexed to the lease deed by way of description of the demised premises. The map annexed as Schedule I was the "plan showing the demised premises, indicating carved out assets and lands vested with IAF and Navy". The carved out assets were : (1) new ATC tower; (2) & (2A) the NAD staff colony of AAI; (3) land leased to Hotel Leela Venture; (4) all retail fuel outlets which were outside the airport operational boundary; and (5) convention centre. The map also contains a note below the list of carved out assets, reading as under: "A :

4. According to the appellant the said parcel measuring 31,000 sq.m. was also part of the airport that was to be handed over by AAI to appellant but it could not be included in view of a pending case (Suit No.6846 of 1999 on the file of the Bombay High Court) filed by the first respondent wherein the High Court had made an interim order dated 2.5.2001, relevant portion of which is extracted below :

5. In pursuance of the lease of the airport in its favour, the appellant claims to have undertaken several developmental activities to make it a world class airport. The appellant alleges that it was expecting that the litigation initiated by the first respondent would end and it would be able to get the said 31,000 sq.m. land also as it was in dire need of land for developing the airport. According to the appellant, the Mumbai airport is surrounded by developed (constructed) areas with very limited opportunities to acquire any land and the site constraints limit the possibilities for development and therefore it was necessary to make optimum use of the existing land in the airport for the purpose of modernisation and upgradation; and therefore, the disputed land which was lying idle, was required for modernisation. It therefore filed an application seeking impleadment as an additional defendant in the pending suit filed by the first respondent against AAI, contending that its interest was likely to be directly affected if any relief is granted to the first respondent-plaintiff in the suit. The appellant alleged that the 5 Information Memorandum proposing to privatise the management did not exclude the area which was the subject-matter of the suit; and that the suit plot could not however be leased to the appellant in view of the interim order in the pending suit of the first respondent. The appellant therefore claimed that it had, or would have, an interest in the suit land; and at all events, it was interested in acquiring it by lease depending upon the decision in the suit and therefore it was a necessary party and in any event a proper party.

7. A learned Single Judge dismissed the appellant's application by order dated 1.4.2008. The learned Single Judge was of the view that as the appellant was yet to acquire any interest in the suit land and as the pending suit by the first respondent was for specific performance of an agreement which was a distinct earlier transaction between the first respondent and AAI to which the appellant was not a party, and as the first respondent was not a party to the arrangement between AAI and the appellant, the court cannot permit impleadment of appellant with reference to some future right which may accrue in future, after the decision in the suit. The appeal filed by the appellant was also dismissed by a Division Bench by order dated 25.8.2008. The Division Bench held that the appellant did not make out that he was a necessary party and the application merely disclosed that he was only claiming to be a proper party; that the appellant's claim was not based on a present demise but a future expectation based on spes successionis; and that therefore, the impleadment of appellant either as a necessary party or proper party or formal party was not warranted. The said order is challenged in this appeal by special leave. The question for consideration is whether the appellant is a necessary or proper party to the suit for specific performance filed by the first respondent.

17. In the result, the appeal is dismissed.