IMPORTANT POINTS
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.
2. A plea of discrimination can only be raised in aid of a right. If a person has a right in law, to be treated in a particular way, but that treatment is denied to him, whereas others are given the same treatment, a plea of discrimination can be made out.

Headnote:Public Premises (Eviction of Unauthorized Occupants) Act, 1971- Sections 4, 5, 5A, 5B and 7-Licence Agreement entered into between Airport Authority of India and the respondent for running a deluxe grade-I restaurant, covering a space of about 5000 sq. ft., in the car park zone in front of Terminal 1A of the Mumbai Airport, pursuant to a bid of contesting respondent-Grievance of respondent, that apart from the Licence Agreement, there had been an oral extension of licence and contesting respondent was assured that it was irrevocable, and on basis of such assurance, it had invested considerable money in building the restaurant- Appeals against order of High Court-Held on its own showing, contesting respondent completed construction of restaurant by 1.1.97, which was well within the initial licence period, which was upto 26.11.98- Admittedly thereafter, there had been two extensions of the licence period upto 26.5.2000- Therefore, the construction having been completed and the restaurant being operational by 1.1.97, there was no occasion for the contesting respondent to urge that it invested money in construction of the restaurant on the oral assurance by the officers of the AAI about extension of the licence so as to make it irrevocable- In fact no oral assurance of extension of licence was contemplated in the facts of case-The stand of contesting respondent that its licence was irrevocable as it had invested money in the premises and made construction was directly contrary to the stand which it took before Bombay High Court and which was recorded in the High Court’s Order - Conduct of contesting respondent in view of its inconsistent pleas was far from satisfactory- The complaint of respondent that Estate Officer while deciding the proceedings, failed to observe the principles of natural justice, by not summoning the officers of AAI, was without any substance-The Estate Officer had given adequate reasons for not summoning the officers of AAI by holding that beyond 26.5.2000, there was no written extension of the licence period- Estate Officer rightly held , that when written documents were there, any oral assurance, which purported to contradict written documents need not be considered- No merit in the plea of discrimination raised by respondent, by contending that cases of other licensees had been extended whereas in its case, the licence had not been extended- Such a plea was not factually correct in as much as the licence of contesting respondent was also extended twice- Contesting respondent had blown hot and cold by taking inconsistent stand, and had therefore prolonged several proceedings for more than a decade- Appeal, filed by the contesting respondent dismissed with -Civil appeals filed by Airport Authority of India and Mumbai International Airport allowed. (Paras6 5 to 76)
        Indian Easement Act, 1882- Section 52 –Licence-A licence has been defined in Section 52 of the Indian Easement Act, 1882 as a right to do or continue to do in or upon immovable property of the grantor something, which, in the absence of such right, could be unlawful, but such right does not amount an easement or an interest in the property. (Para 51)
       Facts of the Case :
        A Licence Agreement was entered into between Airport Authority of India and the respondent for running a deluxe grade-I restaurant, covering a space of about 5000 sq. ft., in the car park zone in front of Terminal 1A of the Mumbai Airport, pursuant to a bid of contesting respondent.Grievance of respondent, that apart from the Licence Agreement, there had been an oral extension of licence and contesting respondent was assured that it was irrevocable, and on basis of such assurance, it had invested considerable money in building the restaurant.
       Findings of the Court :
        Held on its own showing, contesting respondent completed construction of restaurant by 1.1.97, which was well within the initial licence period, which was upto 26.11.98. Admittedly thereafter, there had been two extensions of the licence period upto 26.5.2000. Therefore, the construction having been completed and the restaurant being operational by 1.1.97, there was no occasion for the contesting respondent to urge that it invested money in construction of the restaurant on the oral assurance by the officers of the AAI about extension of the licence so as to make it irrevocable. In fact no oral assurance of extension of licence was contemplated in the facts of case.The stand of contesting respondent that its licence was irrevocable as it had invested money in the premises and made construction was directly contrary to the stand which it took before Bombay High Court and which was recorded in the High Court’s Order. Contesting respondent on a complete volte-face of its previous stand could not urge its case of irrevocable licence . Conduct of contesting respondent in view of its inconsistent pleas was far from satisfactory. By taking such pleas, contesting respondent succeeded in enjoying the possession of premises for 10 years even after expiry of its licence . The complaint of respondent that Estate Officer while deciding the proceedings, failed to observe the principles of natural justice, by not summoning the officers of AAI, was without any substance. The Estate Officer had given adequate reasons for not summoning the officers of AAI by holding that beyond 26.5.2000, there was no written extension of the licence period. Estate Officer rightly held , that when written documents were there, any oral assurance, which purported to contradict written documents need not be considered. No merit was found in the plea of discrimination raised by respondent, by contending that cases of other licensees had been extended whereas in its case, the licence had not been extended. Such a plea was not factually correct in as much as the licence of contesting respondent was also extended twice- Contesting respondent had blown hot and cold by taking inconsistent stand, and had therefore prolonged several proceedings for more than a decade. Appeal, filed by the contesting respondent dismissed with .Civil appeals filed by Airport Authority of India and Mumbai International Airport were allowed.
       Result : Ordered Accordingly.

Judgement Key Points

Key Points: - The licence is revocable by its terms, and oral assurances of extension do not bind the statutory authority or override written documents (!) (!) (!) . - The contesting respondent cannot rely on estoppel or the doctrine of election to sustain an irrevocable licence given its inconsistent pleas and lack of right to extension (!) (!) (!) . - Written licence extensions beyond 26.11.98 and 26.5.2000 were recognized, but no oral extension or irrevocable licence was proven; the Estate Officer’s proceedings and due process under the 1971 Act apply to eviction matters (!) (!) (!) . - The Airports Authority of India Act, the AAI Regulations 2003, and the requirement that contracts be sealed and executed with proper authority bound the parties, making oral assurances unenforceable against the statutory body (!) (!) (!) . - The High Court and this Court upheld revocability and dismissed the contesting respondent’s appeal, affirming that the licence does not create any estate or interest and is revocable (!) (!) (!) . - The denial of rights to permanent renewal and the handling of eviction under the 1971 Act were properly adjudicated, with final dismissal of the contesting respondent’s miscellaneous appeal and allowance of the civil appeals filed by AAI and MIA (!) (!) (!) .

What is the revocability of a licence under the facts and terms of the Licence Agreement between AAI/MIA and the contesting respondent?

What are the applicable legal standards for estoppel, election, and inconsistent positions in relation to alleged irrevocable licences under Indian law?

What is the proper application of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and related regulations to licences granted for airport premises?

JUDGMENT

Ganguly, J. —

1. Leave granted.

2. These two appeals, one by Mumbai International Airport Pvt. Ltd. and another by Airport Authority of India, seek to impugn the judgment of the High Court dated March 4, 2009.

3. The relevant facts of the case are that M/s Golden Chariot Airport (hereinafter referred to as “the contesting respondent”) succeeded in a tendering process for running a deluxe grade-I restaurant, covering a space of about 5000 sq. ft., in the car park zone in front of Terminal 1A of the Mumbai Airport. Pursuant 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 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 Airport Director demands and permit the Authority to make use of the keys during the emergency. The Licensee shall not remove or replace the lock on the outdoor or change the locking device on the said outer door of the shop.

25. xxx

26. On expiry of the period or on termination of the licence by the Authority on account of any breach on the part of the Licensee, the Licensee shall deliver the possession of the premises in good condition and peaceful manner along with furniture, fittings, equipments and installations, if any, provided by the Authority. Further, Licensee shall remove his/their goods and other materials from the premises immediately, failing which Authority reserves its right to remove such goods/materials at the cost and risk of the Licensee and demand payment for such removal. If such payment is not made within 10 days, Authority shall be at liberty to dispose off the goods/materials of the Licensee by public auction to recover the cost. The Licensee shall not be entitled to raise any objection in such an eventuality.

27. The licence herewith granted shall not be construed in any way as giving or creating any other right or interst in the said space building(s)/land/garden/tank/ premises to or in favour of the Licensee but shall be construed to be only as a licence in terms and conditions herein contained.

28. xxx

29. The provision of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and the rules framed thereunder which are now in force or which may hereafter came into force shall be applicable for all matters provided in the said Act.”

6. It is clear from what is extracted above that the licence is not irrevocable. Apart from that it is clear that the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and the Rules framed thereunder have been made applicable to the Licence Agreement. It is not in dispute that after th

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2010 Supreme(SC) 901

What is the revocability of a licence under the facts and terms of the Licence Agreement between AAI/MIA and the contesting respondent?

What are the applicable legal standards for estoppel, election, and inconsistent positions in relation to alleged irrevocable licences under Indian law?

What is the proper application of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and related regulations to licences granted for airport premises?

Cases Referred (2)