Bombay High Court
M/S.Bombay Flying Club And Anr vs Airport Authority Of India And 2 Ors on 24 January, 2018
Author: S. C. Dharmadhikari
Bench: S. C. Dharmadhikari, Bharati H. Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 195 OF 2016
1. M/s. Bombay Flying Club,
an Educational Society,
registered under the provisions of
the Societies Registration Act, 1930
having its office at
Juhu Aerodrome, Juhu,
Mumbai - 400049.
2. Mr. B. L. Bijlani,
the Hon. Secretary of
M/s. Bombay Flying Club
Having office at Juhu Aerodrome,
Juhu, Mumbai - 400049. ... Petitioners
versus
1. Airport Authority of India,
having its office Civil Aerodrome,
Juhu, Mumbai - 400 056.
2. Union of India,
through Ministry of Civil Aviation,
having office at Rajiv Gandhi Bhavan,
New Delhi - 110003.
3. Senior Aerodrome Officer,
Civil Aerodrome,
having his office at Rajiv Gandhi Bhavan,
New Delhi - 110003. ... Respondents
......
Mr. Rashmin Khandekar a/w Mr. Prasad Shenoy, Mr. Ravi
Suryawanshi and Mr. Krunal Mehta i/by Naik Naik & Company
for the Petitioners.
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Mr. Aseem Naphade a/w Mr.Rakesh Singh, Ms. Kavita Anchan and
Mr. Arsh Misra i/by M.V. Kini and Company for Respondent No.1.
Mr. Pradeep S. Jetly a/w Mr. M. S. Bharadwaj for Respondent Nos.
2 and 3.
Mrs. Shashikala Salian, Assistant Manager of Airport Authority of
India, present.
......
CORAM : S. C. DHARMADHIKARI &
SMT. BHARATI H. DANGRE, JJ.
DATE : JANUARY 24, 2018.
ORAL JUDGMENT (PER S. C. DHARMADHIKARI, J.) :
1. By this Petition under Article 226 of the Constitution of India, the petitioners are seeking the following two reliefs:
a. that this Hon'ble Court be pleased to issue a writ of certiorari or a writ, direction or order in the nature of certiorari or any other appropriate writ, direction or order under Article 226 of the Constitution of India, calling for the records of the Petitioners' case and after considering the same, quashing and setting aside the impugned communications dated 2nd December, 2014 (Ex. CC, DD & EE), 2nd January, 2015 (Ex. GG), 2nd February 2015 (Ex. JJ), 12th/13th February 2015 (Ex. LL), 21st/22nd July, 2015 (Ex. NN), 1st/2nd September 2015 (Ex. OO), 15th September 2015 (Ex. QQ), 5th August 2015/16th September 2015 (Ex. RR), 2nd/16th September 2015 (Ex. SS), 5th/8th October 2015 (Ex. UU), 2nd/7th December 2015 (Ex. VV), and 11th/15th December 2015 (Ex. WW);
b. that this Hon'ble Court be pleased to issue a writ of mandamus or a writ, direction or order in the nature of mandamus or any other appropriate writ, direction or order under Article 226 of the Constitution of India, directing the Respondent Nos. 1, 2 and 3, their servants, agents, employees and person/s to withdraw the ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:28 ::: vikrant 3/48 907-WP-195-2016.odt impugned communications dated 2nd December, 2014 (Ex. CC, DD & EE), 2nd January, 2015 (Ex. GG), 2nd February 2015 (Ex. JJ), 12th/13th February 2015 (Ex. LL), 21st/22nd July, 2015 (Ex. NN), 1st/2nd September 2015 (Ex. OO), 15th September 2015 (Ex. QQ), 5th August 2015/16th September 2015 (Ex. RR), 2nd/16th September 2015 (Ex. SS), 5th/8th October 2015 (Ex. UU), 2nd/7th December 2015 (Ex. VV), and 11th/15th December 2015 (Ex. WW);
2. This is a classic case where valuable public property in a city like Mumbai, and that too an airport, is allowed to be occupied by parties like the petitioners by the officers and functionaries of the Airports Authority of India and contrary to the mandate of the Airports Authority of India Act, 1994. The Union of India through the Ministry of Civil Aviation, the respondent no. 3 before us and the officials of the 1st respondent-Authority have failed in their duty to protect the larger public interest as also the interest of the statutory authority, namely, the Airports Authority of India. The facts will unfold as to how systematically public officials either abdicate their functions and duties or do not perform them and allow wrong doers occupy public premises and in this case, the airport premises.
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3. In the acts as above, the mandate of law is a casualty. In the case of Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh and Ors. reported in AIR 2011 SC 1834 the Hon'ble Supreme Court held as under:-
"15. The concept of 'State' has changed in recent years. In all democratic dispensations the State has assumed the role of a regulator and provider of different kinds of services and benefits to the people like jobs, contracts, licences, plots of land, mineral rights and social security benefits. In his work "The Modern State" MacIver (1964 Paperback Edition) advocated that the State should be viewed mainly as a service corporation. He highlighted difference in perception about the theory of State in the following words:
"To some people State is essentially a class-structure, "an organization of one class dominating over the other classes"; others regard it as an organisation that transcends all classes and stands for the whole community. They regard it as a power-system. Some view it entirely as a legal structure, either in the old Austinian sense which made it a relationship of governors and governed, or, in the language of modern jurisprudence, as a community "organised for action under legal rules". Some regard it as no more than a mutual insurance society, others as the very texture of all our life. Some class the State as a great "corporation" and others consider it as indistinguishable from society itself."
18. For achieving the goals of Justice and Equality set out in the Preamble, the State and its agencies/ instrumentalities have to function through political entities and officers/officials at different levels. The laws enacted by Parliament and State Legislatures bestow upon them powers for effective implementation of the laws enacted for creation of an egalitarian society. The exercise of power by political entities and officers/officials for providing different kinds of services and benefits to the people always has an element of discretion, which is required to be used in larger public interest and for public good. In principle, no exception can be taken to the use of discretion by the political functionaries and officers of the State and/or its agencies/instrumentalities provided that ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 5/48 907-WP-195-2016.odt this is done in a rational and judicious manner without any discrimination against anyone. In our constitutional structure, no functionary of the State or public authority has an absolute or unfettered discretion. The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the concept of rule of law.
19. In his work 'Administrative Law' (6th) Edition, Prof. H.W.R. Wade, highlighted distinction between powers of public authorities and those of private persons in the following words:
"... The common theme of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, no absolutely - that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crown's lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms."
Prof. Wade went on to say:
"...... The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good.
There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were not imposed. Nor is this principle an oddity of British or American law; it is equally prominent in French law. Nor is it a special restriction which fetters only local authorities: it applies no less to ministers of the Crown. Nor is it confined to the sphere of administration: it operates wherever discretion is given for some public purpose, for example where a judge has a discretion to order jury trial. It is only where powers are given for the personal benefit of the person empowered that the discretion is absolute. Plainly this can have no application in public law."::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 :::
vikrant 6/48 907-WP-195-2016.odt For the same reasons there should in principle be no such thing as unreviewable administrative discretion, which should be just as much a contradiction in terms as unfettered discretion. The question which has to be asked is what is the scope of judicial review, and in a few special cases the scope for the review of discretionary decisions may be minimal. It remains axiomatic that all discretion is capable of abuse, and that legal limits to every power are to be found somewhere." (emphasis supplied)
31. What needs to be emphasized is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/ instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well defined policy, which shall be made known to the public by publication in the Official Gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favoritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
32. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organizations or institutions de hors an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favoritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 :::
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33. This, however, does not mean that the State can never allot land to the institutions/organisations engaged in educational, cultural, social or philanthropic activities or are rendering service to the Society except by way of auction. Nevertheless, it is necessary to observe that once a piece of land is earmarked or identified for allotment to institutions/organisations engaged in any such activity, the actual exercise of allotment must be done in a manner consistent with the doctrine of equality. The competent authority should, as a matter of course, issue an advertisement incorporating therein the conditions of eligibility so as to enable all similarly situated eligible persons, institutions/organisations to participate in the process of allotment, whether by way of auction or otherwise. In a given case the Government may allot land at a fixed price but in that case also allotment must be preceded by a wholesome exercise consistent with Article 14 of the Constitution.
34. The allotment of land by the State or its agencies/instrumentalities to a body/organization/ institution which carry the tag of caste, community or religion is not only contrary to the idea of Secular Democratic Republic but is also fraught with grave danger of dividing the society on caste or communal lines. The allotment of land to such bodies/organisations/institutions on political considerations or by way of favoritism and/or nepotism or with a view to nurture the vote bank for future is constitutionally impermissible."
4. The petitioner no.1 before us claims to be a society registered under the Societies Registration Act. It claims to be operating as an Education and Training Center since the year 1928. It claims to be one of the oldest flying clubs in India operating from the aerodrome space at Juhu, Mumbai. It is stated that the main aim and objective of the petitioner no.1 is to impart education and training in the field of aviation to all those who ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 8/48 907-WP-195-2016.odt possess requisite qualifications. The 1 st petitioner claims to be a no profit business model and all the revenue earned by it is ploughed back to finance its operations. The 2 nd petitioner claims to be the Honorary Secretary.
5. The 1st respondent before us is the Airports Authority of India, an authority constituted and functioning under the Airports Authority of India Act, 1994. It functions under the control and supervision of the Ministry of Civil Aviation. The 1 st respondent administers and regulates the civil aviation in India whereas, the 2nd respondent is the Union of India through Department/Ministry of Civil Aviation. The 3rd respondent is the Senior Aerodrome Officer.
6. On the own showing of the petitioner, they had obtained a lease of the premises and which lease has not been renewed after its expiry. The petitioners themselves say that during the initial stage of operation, they were allotted the full Juhu Airfield area to commence their pilot training activities in India. The petitioner no.1 commenced its operations on 13th January, 1929 when it ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 9/48 907-WP-195-2016.odt received two aircrafts from the Government of India. These aircrafts were used only for the purpose of imparting education and training to the students in various flying courses offered by the petitioner no.1. Thus, to promote the art and science of flying and aeronautics in all aspects that the 1 st petitioner was set up and it claims to have trained over 400 students.
7. Then, it approached the Secretary to the Department of Industries and Labour, Government of India in order to obtain permission and authorization to construct/erect/build a hanger and/or garage on the Civil Aerodrome Space in Juhu. Therefore, the permission was granted on terms and which was valid for ten years with effect from 13th January, 1929. Post independence, under the Indentures dated 12th December, 1950, 6th June, 1955 and 17th July, 1956, the original Indenture and/or rights granted thereunder were extended from time to time. On 10 th March, 1997, the 1st respondent addressed a letter to the petitioner no.1, thereby stating that it had renewed the license for the petitioner no.1 for a period of one year w.e.f. 1 st January, 1997 to 31st January, 1998 at a token license fee of Rs.1/- per annum. Thus, ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 10/48 907-WP-195-2016.odt this token license fee was accepted. It is stated that petitioner no.1 has uninterruptedly run and/or conducted the aviation/flying club and the institute for civil aviation at the Juhu Aerodrome.
8. Para 10 of this Petition makes interesting reading. We reproduce the same herein below:
"10. From 1998, Respondent Nos. 1 and 2 arbitrarily and with malafide intentions stopped accepting the lease rental/license fees from the Petitioner No.1. This led to the Petitioner No. 1 causing a letter dated 11 th September 2001 to be issued by their Advocates demanding the renewal of the lease and/or arrangement. On receiving no response, the Petitioner No.1 sent another letter dated 12th December 2001, whereby the Petitioner No.1 protested against the non-renewal of the license to use and occupy the space at the aerodrome and stated that from 1998, the Petitioner No.1 was orally promised by Respondent Nos. 1 and 2 that their lease and/or license would be renewed. Annexed hereto and marked as Exhibit "M" and Exhibit "N" are copies of the letters dated 11 th September, 2001 and 12th December 2001, respectively."
9. Thus, it would be evident that from 1998, neither was there any renewal nor was there any permission, much less any approval to use these premises but the petitioners continued in wrongful use and occupation thereof. The communications between the 1st respondent and equally the Department of Civil Aviation are telling. These two entities do not renew the lease but keep on corresponding with the petitioners as if in law they are ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 11/48 907-WP-195-2016.odt obliged to make a request to pay the money or to hand over the premises. So much for those who are trusted to safeguard and protect public properties. It is clear that the Government of India and the Airports Authority of India are trustees of the public. They cannot fritter away, waste any public property. Despite the petitioners knowing that they have no right, title and interest in the property, they have no permission or approval, even now the stand of the respondent nos. 1 and 2 is that the petitioners may say so but they have to follow the rule of law. We are not clear what rule of law the respondents have in mind and particularly when we are not inclined to grant any relief to the petitioners in writ jurisdiction.
10. After the pleading as above in para 10, in para 11 it is stated that from 2001 to 2007, several assurances and reassurances were given by respondent nos. 1 and 2 to the petitioner no.1 with respect to the renewal of the lease/license. However, the formal renewal of the arrangement did not take place. So much for those who are aware that unless there are written contracts in relation to public properties or Government premises or airport premises, ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 12/48 907-WP-195-2016.odt none can enter upon, use or remain on the same. There is nothing like a formal renewal, for there are specific powers conferred in the Authority to enter into and make contracts. These properties and lands which are made over to the Airports Authority of India by the Government are not for allowing people like the petitioners to occupy them even after the initial permission or agreement or lease came to an end. There is neither any lease, nor is there any license. Both of which have to be in writing. The authorities are aware that unless there are any such written documents executed by the competent authorities and in terms of the powers conferred in them by the statute, none can claim a semblance of right, much less a right of the nature claimed by the petitioners and asserted boldly in this Petition.
11. It is stated that on 1st October, 2007, the 1st respondent addressed a letter to the petitioner no.1 thereby stating that the competent authority of the 1st respondent had approved levy of charges at 10% of normal rate for the premises allotted to the petitioner no.1 and that the same was payable with effect from 1 st April, 2007. The petitioner no.1 claims that it was surprised to ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 13/48 907-WP-195-2016.odt receive invoices/demand notices for the purported charges payable towards the premises and claims that they were ex facie exaggerated, inflated and/or even otherwise fanciful. It is proclaimed, and surprisingly, that they have no legal basis.
12. Thereafter, what we find is that in the pleadings, it is stated by the petitioners that considering the peculiar nature of their activities, they operating on a 'no-profit no-loss' basis, they are entitled to use and occupy the land at a nominal rent at Rs.1/- per year. It is claimed that this is a token rent and that is the only sum due and payable. At the same time, it is stated that it is a society imparting education in civil aviation to students including those Scheduled Castes and Scheduled Tribes candidates receiving scholarship from the Director General of Civil Aviation, Ministry of Civil Aviation and Government of India. Once the demands were termed as excessive and unacceptable, but as negotiations are already in progress, the petitioners requested that status quo be maintained in respect of the demand of license fees/rentals. Thus, in para 13, correspondence up to the year 2011 has been referred. ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 :::
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13. Once again, in para 14 it is stated that from 2007 till early 2012, this position continued, namely there was a dispute over payment of the monthly rentals and renewal of the petitioner no.1's lease/license. It is claimed that the activities at the premises and/or at the aerodrome have been continued uninterruptedly. Thus, the petitioners are aware that unless they obtain the lease/license or if there was no existing lease that was renewed, their occupation of the premises is illegal and unauthorized.
14. In para 15, it is stated that a demand was raised by a letter dated 8th/12th March, 2012 in the sum of Rs.2,26,79,000/- and the respondent no.1 threatened to ban the entry of petitioner no.1's students, staff and officials for a period of one month. This was done, according to the petitioners, without in any manner dealing with the petitioner's prior representations in the matter. Since the demand was not given up, the petitioner no.1 responded to these letters of demand recording a meeting held with the Chairman of respondent no.1 on 5th March, 2012 followed up by meetings with Senior Officials of the Civil Aviation Ministry and the authorities concerned, including the Chairman. It had therefore been decided ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 15/48 907-WP-195-2016.odt not to take any action until the lease rent issue was resolved. Hence, the respondents were called upon not to take any coercive steps in the matter.
15. Once again, on 28th March, 2012 and 30th March, 2012, the 1st respondent issued communications seeking to stop petitioner no.1's operations and their entry to the aerodrome.
16. The events after these communications have a important bearing on the prayers in the present Petition. The Writ Petitioners before us had filed earlier Writ Petition (L) No.858 of 2012 aggrieved by the letters of the 1st respondent seeking to stop their operations and their entry to the aerodrome.
17. On this Petition, an order was passed, copy of which is at Exhibit "V" to the Petition from page 103 to 105 of the paper book. This order reads as under:
" Learned counsel for the petitioners submits that the Petitioner No.1-Club, hereinafter referred to as the "Petitioner-Club", is a 'no profit no loss' Organization, which is running a Flying School on commercial basis. The Respondents themselves have treated the Flying Club as falling in category I (nominal tariff) as per the letter dated 07.02.2007 read with the letter dated 25.04.2007 of the ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 16/48 907-WP-195-2016.odt Airports Authority of India (Pages 177 to 178 of the additional affidavit).
2. The learned counsel for the petitioners submits that the Petitioner-Club has been permitted to use the Juhu Aerodrome since 1931 at the nominal rent of Rs.1 per annum, and therefore, the Respondents are not justified in demanding the rent at the rate of Rs.5 lakhs per month, and that too from the year 2007. He further submitted that the exams have already commenced and the coercive action sought to be taken by the Respondents at this stage, will cause irreparable harm to the students prosecuting their studies in the Flying School.
3. On the other hand, learned counsel for Respondent No.1 as well as learned counsel for Respondent Nos. 2 & 3 submit that the commercial rent is Rs.50 lakhs per month, and therefore, the amount of rent of Rs.5 lakhs per month, being demanded by the Respondents from the petitioners, is nominal tariff.
4. Having heard learned counsel for the parties for some time and having regard to the fact that at present the exams conducted by the Petitioner-Club are going on, while adjourning further hearing of this petition to 18.06.2012, we grant ad-interim relief in terms of prayer clauses C-(i), (ii) &
(iii), subject to the condition that the Petitioner-Club deposits with the Respondent No.1-Airports Authority of India, a sum of Rs.2,50,000/- per month with effect from 1st April, 2012 onwards, till further orders. The amount for the month of April-2012 shall be deposited on or before 10 th April, 2012, and so on and so forth, for all the succeeding months the amount shall be deposited on or before 10 th day of every month.
5. It is clarified that this ad-interim order is passed without prejudice to the rights and contentions of the parties and shall not come in the way of the Petitioner-Club pursuing its representation before the Respondent No.2-Union of India, Ministry of Civil Aviation."::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 :::
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18. After this order, it is claimed that meetings were held and in which it was allegedly decided to keep the orders of recovery charges in abeyance for a period of two months. That is how a communication of 29th May, 2012 was issued and it was stated that up to 7th July, 2012, the recovery would be kept in abeyance.
19. The petitioners state that in terms of the order passed by this Court, since no order and direction was issued, the petitioners withdrew the Petition with liberty to revive it in case it becomes necessary so to do. It was further directed that in case the respondents take any decision adverse to the petitioners, that will not be implemented for a period of two weeks from the date of the communication of the petitioners. Exhibit "Y" is a copy of this order and we reproduce the same below for ready reference:
"1. Learned counsel for the petitioners seeks leave to place on record copy of the communication dated 29 May 2012 from Airports Authority of India, General Manager conveying that it has been decided to keep the order of recovery of outstanding dues from Category-I Flying Club in abeyance for a further period upto 7 July 2012. It thus appears that the matter regarding revision of Airports Authority charge is under consideration of the concerned authorities. Since no final decision is yet taken, learned counsel for the petitioner seeks leave to withdraw the petition with liberty to apply for revival, in case it becomes necessary to do so. Learned counsel for the petitioners further submits that in case the respondent ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 18/48 907-WP-195-2016.odt authorities take any decision adverse to the petitioners, the same may not be allowed to be implemented for a period of two weeks in order to enable the petitioners to have further recourse in accordance with law.
2. In view of the above, leave as prayed for is granted with liberty as prayed for. Writ Petition is accordingly disposed of as withdrawn with liberty to the petitioners to apply for revival of the petition in case it becomes necessary for the petitioners to do so. It is further directed that in case the respondents take any decision adverse to the petitioners, the same shall not be implemented for a period of two weeks from the date of communication to the petitioners.
3. Writ Petition stands disposed of. Ad-interim relief granted earlier stands vacated.
4. In view of the disposal of the Writ Petition, Notice of Motion (L) No.180 of 2012 stands disposed of."
20. Boldly it is stated that the 1 st petitioner did not make further payment to respondent no.1 and it was the respondent no.1 which was required to take decision on the petitioner's representation. The respondent no.1 addressed a communication dated 19 th November, 2012 explicitly stating therein that until further orders, the order for recovery of outstanding dues from category-1 flying club would be in abeyance. The petitioners state that on 22 nd April, 2013, the 2nd respondent addressed a letter to the petitioner no.1 stating therein that Flying Training Organizations were categorized in two categories. The category '1' is of Flying Clubs ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 19/48 907-WP-195-2016.odt registered as educational societies and which operate on a 'no profit and no loss' basis and importantly, were receiving grants-in- aid from Central/State Government and Category '2' Flying Clubs, which were operating on commercial basis and have been issued NSOP certificates by the Directorate General of Civil Aviation.
21. Exhibit "AA" is a copy of this letter dated 22 nd April, 2013. The petitioners replied to this letter on 30 th April, 2013 proclaiming that the 1st petitioner was a Category '1' Flying Club. It operates on 'no profit no loss' basis. The contents of this letter are referred in para 22 of this Petition but the pleading is conspicuously silent about any grants-in-aid being received from the Central/State Government. Thus, the petitioners were aware that they do not fit in the categorization and which has been made by the Ministry of Civil Aviation.
22. It is the petitioner's case that till 2014, the 1st respondent did not communicate either directly/indirectly and through any mode and/or medium to the petitioners that any amount was allegedly due from the petitioner no.1. They were not aware of any decision ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 20/48 907-WP-195-2016.odt being taken by the concerned authority regarding revision of charges. Yet the petitioners, in para 24, say that they have been receiving bills and invoices and demands for payment of license charges. There was no response from their end and it is then stated that a barrage of letters was received. The petitioner no.1 was considered as a Category '1' Flying Club and was charged license fee at nominal rate. But the 1st respondent alleged that it has now come to know that the petitioner no.1 was engaged in commercial activities and does not fall in Category '1' Flying Club. That is how they were called upon to pay monthly license fees alongwith outstanding dues and applicable interest.
23. From para 26 what we have is a persistent demand to pay Rs.69,52,229/- being damage charges for keeping 7584.25 square meters of land. The petitioner's reply was that this, and the hanger admeasuring 1846.54 square meters and the NRB Space admeasuring 1959.37 square meters, for which damage charges of Rs.39,86,227/- was demanded, is not payable. They maintained that they are a 'no profit no loss' basis society but in para 28, surprisingly it is stated that it was receiving grant-in-aid from Central/State Government and as such, fell in Category '1'. ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 :::
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24. The petitioners summarize their case in this para and from para 29, they refer to the demands raised in writing. The correspondence continued, but the relevant and material document, namely, renewal of the earlier lease or a fresh lease in writing has not been forthcoming. The petitioners therefore seek to challenge the demand raised on them on several grounds.
25. The Writ Petition also has been amended so as to refer to correspondence and communications. We do not think that the petitioner's representations or the communications addressed to them should be now referred and in details, for the essential controversy has been understood by both sides to be the 1 st respondent's assertion that without paying any amount and much less as demanded, the petitioners continue to occupy the huge premises, namely, virtually the whole aerodrome at Juhu, Mumbai and secondly, they have not executed any fresh lease or renewed the earlier lease or license in any manner.
26. The petitioners term these actions as unconstitutional and illegal. However, the bonafides of the petitioners would be ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 22/48 907-WP-195-2016.odt evident from their own letter dated 15th December, 2014 addressed to the Airports Authority of India, copy of which is at page 121 of the paper book (Exhibit-FF). Para 3(f)(g) and (h) at pages 122-123 reads as under:-
"f) Subsequently, a meeting was held on 24 th August, 2009 between Captain Satish K. Sharma M. P. (President - Aero Club of India ("ACI") which is the apex body of the flying clubs) and Mr. Praful Patel (Union Minister of Civil Aviation) essentially to discuss our concerns with respect to levy of lease/licence fees for the Premises and in this meeting, it was proposed by ACI to the Union Minister of Civil Aviation to maintain the levy of lease fee @ Re. 1 payable by ACI member flying club which also includes us (i.e.) Bombay Fling Club and the same was immediately agreed upon by Mr. Praful Patel.
g) Thereafter on 11th March, 2011 in a letter issued by ACI to the Ministry of Civil Aviation ("Ministry") Captain Satish K. Sharma requested the Ministry to advise you to - (a) maintain status quo with respect to levying Re. 1 as lease/licence fee; and
(b) to refrain from issuing any communication to ACI member flying clubs which adversely affects the normal operations of the ACI member flying clubs and hamper their flying training activities. The copy of the said letter dated 11 th March, 2011 is annexed hereto as Annexure-D for your immediate reference and records.
h) Subsequent to the above letter, a letter dated 22 nd March, 2012 was issued by ACI to the Ministry, Captain Satish K. Sharma requesting once again the Ministry to advise you to maintain status quo and continue charging Re. 1 as lease/licence fee per annum till such time the matter is finally decided. The copy of the said letter dated 22 nd March, 2012 is annexed hereto as Annexure-E, for your immediate reference and records."
27. Pertinently, in para 48 of this Petition, it is stated that when this Petition was filed, the petitioner's apprehensions have been ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 23/48 907-WP-195-2016.odt reinforced because the respondents, in the Court vacation, have sealed the Delhi Flying Club premises on similar grounds. The grounds in the Writ Petition make interesting reading because the above actions are stated to be unfair, unjust, illegal and unconstitutional, violating the mandate of Articles 14, 19(1)(g) and 300A of the Constitution of India.
28. The grounds highlight as to how alleged unfair treatment is given to an institution of repute like the petitioners and that is termed as highhanded.
29. With such allegations, the present Petition and containing the above prayers was lodged on 22nd December, 2015.
30. We would, only for reference's sake, refer to the communication of 22nd April, 2013 at page 114 of the paper book which reads as under:
"To, All Flying Training Organizations Subject :- Alleged irregularities in various Flying Schools.
Sir,
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I am directed to say that at present Flying Training organization (FTO) are categorized in the following two categories:
a) Category-1 : For the flying clubs which are registered as educational societies and operating on 'no profit no loss basis' and are receiving Grants-in-aid from Central/State Governments.
b) Category-II : For the flying clubs which are operating on commercial basis and have been issued NSOP Certificates by the DGCA.
In view of the above, it may be clarified that under which category your flying school will fall and if not fulfilling the condition of Category I even though operating on no profit no loss basis. It may also be provided with the historical perspective of your flying schools from its inception.
Yours faithfully, Sd/-
(Jagdish Kumar) Section Officers for Director General of Civil Aviation"
31. Then, the response of the petitioners to the same is at page 115 of the paper book dated 30 th April, 2013, in which it is stated as under:
"To, DIRECTOR GENERAL OF CIVIL AVIATION O/o THE DIRECTOR GENERAL OF CIVIL AVIATION Opposite Safdarjung Airport New Delhi 110 003 Kind Attn: Mr. JAGDISH KUMAR- Section Officer, DGCA Ref: Your Letter No.AV.22031/4/2013-FG, dated 22nd April 2013.::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 :::
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Sir,
Our category of flying training institute is "Category-I". We are enclosing the following documents for your instant reference.
We are non commercial "No Profit No Loss" basis Flying Institute and college imparting quality training in Aviation since 1928 from Juhu Airport.
We do not receive any Grant or Subsidy from Central and State Government.
Bombay Flying Club is Educational Institute, registered under Society Act 1860, Registration No.GBBSD of 767 (registration copy attached).
As per bye laws of Memorandum & Articles of Association, we are non-profitable educational institution (copy enclosed).
We are affiliated to Mumbai University (copy attached). The turned out students will be as GRADUATES (approval copy enclosed).
We are also registered under section 12A of Income Tax Act 1961 for exemption of Income Tax (as non-profit organisation) (copy enclosed).
Thanking you, Yours faithfully, for THE BOMBAY FLYING CLUB Sd/-
Authoirzed Signatory"
32. The clear and unambiguous statement therein is that "we do not receive any Grant or Subsidy from Central and State Government". The petitioners have themselves annexed the ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 26/48 907-WP-195-2016.odt correspondence which they have been carrying out and in that correspondence, they have been making reference to certain meetings. We have also, as an annexure to this Petition, a letter written by Captain Satish K. Sharma, Member of Parliament and President of Aero Club of India, New Delhi. He seems to be taking up the cause of the petitioners as well. We have in the correspondence, copies of which are annexed, seen several references to meetings with the officials and the then Minister of Civil Aviation Shri Praful Patel. The petitioners have, therefore, gone as far as seeking intervention of these political leaders so as to retain control over the property by maintaining that they do not fall in Category '1'. Thereafter, we have the affidavit-in-reply of the 1st respondent in which, in para 6, it is stated that even when the earlier Writ Petition (L) N.858 of 2012 was withdrawn by order dated 18th June, 2012, the petitioner was ordered to pay interim monthly licence fee at Rs.2,50,000/- with effect from 1 st April, 2012. The petitioners paid this licence fee per month for only three months from the month of April 2012 till June 2012. No licence fee has been paid subsequent to June, 2012. The 1 st respondent, therefore, in its affidavit-in-reply denies all allegations ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 27/48 907-WP-195-2016.odt of discrimination, highhandedness, illegality and assert that the premises have been usurped by the petitioner in the garb of imparting education. The premises are being used for commercial purposes by the petitioner. The petitioner is charging heavy fees from the students. That is why the petitioner is termed as 'no less than a commercial shop' (see para 25). Then it is stated that the petitioner has not applied for any financial grant either from the State Government or the Central Government. The petitioner's own admission is relied upon. Thus, the petitioner's case is fully denied and the allegations as well. There is voluminous correspondence and which is referred in the affidavit-in-reply and copies of some documents have been also annexed.
33. It is stated that the petitioners being in wrongful use and occupation of the premises, they should not be granted any relief.
34. In the affidavit-in-rejoinder that is filed to this Petition, while dealing with the non payment of the amount under the order of this Court, the petitioners assert in para 12 that the order passed on 4th April, 2012, attaching therewith a condition to pay ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 28/48 907-WP-195-2016.odt the amount, was vacated by order dated 18 th June, 2012. Therefore, there was no obligation to make any payment whatsoever after 18th June, 2012. Reliance is placed on a single letter dated 19th November, 2012 of the 1st respondent, keeping in abeyance the recovery of dues from Category-I Flying Club till further orders.
35. Thus, the ad-interim order in the earlier writ petition is understood by the petitioners to mean that they were no longer obliged to pay any sum particularly after it was vacated and the Petition itself was withdrawn and disposed of as such on 18 th June, 2012. The petitioners would like us to believe that the above materials mean they acted bonafide and can continue in occupation, use and possession of the premises without any lease- deed or license and without payment. No order of the Court can be construed as running contrary to any statute or Act or prescription of that nature. The Airports Authority of India Act, 1994 does not permit the authorities thereunder to allow utilization of such space, much less the Juhu Aerodrome without any right being created in that behalf. The petitioners have also, in ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 29/48 907-WP-195-2016.odt the affidavit-in-rejoinder at running para 22 page 323, stated that it is not correct to say that it is running its affairs free of charge. Yet it maintains that it has been categorized as Category-I Flying Club. The categories apart, the petitioners have not controverted or denied, leave alone dealt with the essential objection in the affidavit-in-reply of the 1st respondent, namely that the use and occupation is wrongful and illegal in the absence of any lease/license and payment of license fees/charges.
36. Before we deal with the rival contentions, we would have to refer to the Airports Authority of India Act, 1994. It is an Act to provide for the constitution of the Airports Authority of India and for the transfer and vesting of the undertakings of the International Airports Authority of India and the National Airports Authority to and in the Airports Authority of India so constituted for the better administration and cohesive management of airports and civil enclaves whereat air transport services are operated or are intended to be operated and of all aeronautical communication stations, for the purposes of establishing or assisting in the establishment of airports and for matters ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 30/48 907-WP-195-2016.odt connected therewith. The statement of objects and reasons sets out the silent features of the Act and this Act was amended by the Amendment Act 43 of 2003. That was an amendment introduced so as to facilitate improving the standard of the services and facilities at the airports and to bring them at par with the international standards. That envisages participation of private sector and encouragement for such participation.
37. It is not in dispute that Section 1 of this Act applies to all airports whereat the air transport services are operated or are intended to be operated, other than airports and airfields belonging to, or subject to the control of any armed forces of the Union. Thus, the present establishment and premises come under the purview of this Act is not disputed. Section 2 contains the definitions and all of these definitions are relevant for our purpose, but we do not reproduce them.
38. By Chapter II, the Act envisages the constitution and incorporation of the Authority, namely, the Airports Authority of India, disqualification for office of member, term of office and ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 31/48 907-WP-195-2016.odt conditions of service of members, vacation of office of member, eligibility of a member for re-appointment, meetings, vacancies not to invalidate proceedings of the Authority and appointment of officers and other employees of the Authority. We are not concerned as much with Sections 4 to 9, but Section 10 states that, for the purpose of enabling it efficiently to discharge its functions under this Act, the Authority shall, subject to the provisions of Section 18 and to such rules as may be made in this behalf, appoint, whether on deputation or otherwise, such number of officers and other employees as it may consider necessary. Subject to the provisions of Section 18, every officer or other employee appointed by the Authority shall be subject to such conditions of service and shall be entitled to such remuneration as may be determined by regulations. What is relevant for our purpose is that these officers are appointed to enable the Airports Authority of India to efficiently discharge its functions under the Act. Equally, Section 11 of the Act contemplates that in the discharge of the functions under the Act, the Authority shall act, so far as may be, on business principles.
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39. Section 12 sets out the functions of the Authority and that falls in Chapter III. Section 12-A is important and reads as under:
"12-A. Lease by the Authority- (1) 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 functions in terms of the lease."
40. Thus, 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. No lease under Sub- section (1) of Section 12-A shall be made without the previous ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 33/48 907-WP-195-2016.odt sanction of the Central Government. 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. By Sub-section (4) of Section 12-A, the assignment of any functions of the Authority in the lessee is contemplated. By Chapter IV, titled as "Property and Contract", undertakings of the International Airports Authority and the National Airports Authority to vest in the Airports Authority of India. The general effect of such vesting is then set out by Sections 14, 15 and if any tax exemption or benefit is enjoyed, then, that would continue by virtue of Section 16. By Section 17, any guarantee was also to remain operative. Then, the provisions in respect of officers and other employees of the International Airports Authority and the National Airports Authority are contemplated. Section 19 says that compulsory acquisition of land for the Authority may be made by taking recourse to the Land Acquisition Act, 1894 and any purpose of the Authority for which the acquisition shall be made would be a public purpose within the meaning of the Land Acquisition law. Sections 20 and 21 are important for our purpose. They read as ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 34/48 907-WP-195-2016.odt under:
"20.Contracts by the Authority.- Subject to the provisions of section 21, the Authority shall be competent to enter into and perform any contract necessary for the discharge of its functions under this Act.
21. Mode of executing contracts on behalf of the Authority.- (1) Every contract shall, on behalf of the Authority, be made by the Chairperson or such other member or such officer of the Authority as may be generally or specially empowered in this behalf by the Authority and such contracts or class of contracts as may be specified in the regulations shall be sealed with the common seal of the Authority:
Provided that no contract exceeding such value or amount as the Central Government may, from time to time, by order, fix in this behalf shall be made unless it has been previously approved by the Authority:
Provided further that no contract for the acquisition or sale of immovable property or for the lease of any such property for a term exceeding thirty years and no other contract exceeding such value or amount as the Central Government may, from time to time, by order, fix in this behalf shall be made unless it has been previously approved by the Central Government.
(2) Subject to the provisions of sub-section (1), the form and manner in which any contract shall be made under this Act shall be such as may be specified by regulations.
(3) No contract which is not in accordance with the provisions of this Act and the regulations shall be binding on the Authority.
41. Thus, what we find is that the Authority can contract and bind itself but the mode of executing contracts on behalf of the ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 35/48 907-WP-195-2016.odt Authority is set out in Section 21 and if a contract value exceeds the figure or the amount fixed by the Central Government, then, any contract of that value shall be made only with its previous approval. In the sense, no contract exceeding such value or amount as the Central Government may, from time to time, by order, fix in this behalf shall be made unless it has been previously approved by the Authority. Further proviso is that no contract for the acquisition or sale of immovable property or for the lease of any such property for a term exceeding thirty years and no other contract exceeding such value or amount as the Central Government may, from time to time, by order, fix in this behalf shall be made unless it has been previously approved by the Central Government. These provisions are indeed salutary, for they guide and control the Authority. Chapter V says that the finance, accounts and audit carried out in terms of the provisions of this Chapter would have to be subjected to such scrutiny as the Act provides and including by the Comptroller and Auditor- General of India. Then comes newly inserted Chapter V-A which provides for eviction of unauthorised occupants of Airport premises.
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42. We have referred to all these provisions only to emphasize that the Airport Authority is a creature of the statute. It is bound by all the provisions upto Chapter VI of this statute and it cannot act contrary to the same. The petitioners must, therefore, make out a right of the nature contemplated by this statute, for the Airports Authority of India derives its powers only under this statute, especially a power to enter into any contract and be bound by it. There are regulations in place, namely, the Aitports Authority of India (Contract) Regulations, 2003 to guide the making of the contract.
43. This Petition was argued on the earlier two occasions and even today and the petitioner's counsel would submit that given the nature of the functions performed by the petitioner no.1, we must take a lenient view of the matter. It is not as if the petitioner no.1 entered upon the airport premises without any authority of law. Its initial entry was valid and under a document in writing. There were terms and drawn up by both sides and reduced into writing. It is that document which is relied upon and the submission is that, in terms thereof, the Authority can exercise ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 37/48 907-WP-195-2016.odt power of renewal. In exercising that power of renewal, the Authority is expected to act reasonably and bonafide. It should not be unfair, unjust and thrust upon the petitioners a demand which the petitioners are unable to meet. The petitioners are not making profit and do not in any manner enrich themselves by entering upon the land or remaining on it. They have not exploited the potential of the land to such an extent as would justify the respondent no.1 calling upon them to pay huge sums and making it impossible for them to carry out their essential activities. The argument is that they serve a larger public purpose. The training that is imparted to the students even from the backward category of the society enables them to serve the aviation sector. Thus, this is a feeder organization or institute and which caters to the needs of civil aviation sector and that also serves the large public purpose. In other words, this Ministry and the petitioners are working in tandem and co-ordination so as to ensure quality training for the students who wish to take Civil Aviation as a career. It is therefore submitted that, consistent with the mandate of Article 14 of the Constitution, this Court should allow the petitioners to continue and use the premises and at the same time ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 38/48 907-WP-195-2016.odt direct the 1st respondent not to act upon its communications and evict them. It is thus, a request that a balance may be struck so that a lease can be obtained but on reasonable terms and conditions.
44. On the other hand, the 1st respondent maintains that there has been no renewal of the lease and from 1997 there has been no indulgence shown either. That a communication was addressed by one of the officials holding the recovery in abeyance does not mean that it is the stand of the Authority. The Authority has in no way given up its demand, nor can it give it up in law. Secondly, it cannot allow its premises to be occupied endlessly by the petitioners when they have no right, title and interest in the same. Thus, the Authority is not obliged to renew the lease and on such terms as are dictated by the petitioners herein. More so, when their activities are not consistent with the policies of the Ministry of Civil Aviation. For these reasons, it is submitted that the Petition be dismissed.
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45. After giving our anxious consideration to the contentions of both sides and perusing with the assistance of the Advocates the Petition paper book, including the annexures to the memo, the affidavit-in-reply and the rejoinder, we are of the view that the petitioners are not entitled to any relief, much less discretionary and equitable. The petitioners have invoked this Court's jurisdiction under Article 226 of the Constitution of India and sought a writ of mandamus or a writ, order or direction in that nature directing the respondents to withdraw their communications and demands for payment of money. It is well settled to require any reference to any precedents that a writ of mandamus is issued to enforce a preexisting and pre-established legal right. We do not find any legal right in the petitioners, for the permission in their favour to use and occupy the premises has admittedly come to an end. On their own pleadings, there has been no permission or execution of a lease in their favour post 1998. They have been requesting for execution of such lease or renewal of the existing lease but the response of the authorities is as clear as referred above. The Authority is not willing to oblige them by renewing the existing lease or executing a fresh lease on ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 40/48 907-WP-195-2016.odt the terms and conditions which are virtually drafted by the petitioners herein. However, the authority has acted strangely and we are surprised that despite maintaining throughout that the petitioners have no right, title and interest in the premises, the Authority continued to indulge them. The authority did not take any action and for reasons best known to it. It allowed the petitioners to take assistance of political leaders and intermeddle with the affairs of the Civil Aviation Department and that of the Airports Authority of India. On their instance the demand was kept in abeyance. We do not see how officials of a responsible statutory functionary like the Airport Authority of India have allowed these state of affairs to continue and for more than two decades. They have derived nothing from the airport premises and as huge as they are, as they continue to be in wrongful use and occupation of petitioners herein. Despite this position being to their knowledge, the Authority officials took no action in the matter beyond addressing the communications. Today, we are further surprised when the official of the Airports Authority of India and present in Court has instructed its counsel to state that now the Authority will gear itself up and initiate proceedings for ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 41/48 907-WP-195-2016.odt dispossessing the petitioners or securing their eviction. We do not know how this sympathy for a wrong doer and shown by the Airports Authority of India officials is tolerated by the higher functionaries and the Departmental officials in the Government of India. It is surprising that a person in wrongful use and occupation and a rank trespasser is entertained, encouraged and indulged by the officials and they faced no Departmental or criminal action. We remind the Airports Authority officials that they are public servants. They perform a public duty. When they are put in charge of public premises and properties and they hold them in trust for the public, they are not supposed to abdicate and surrender their powers to any outside agency, much less political leaders, or allow with their intervention the premises to be virtually taken over by parties like the petitioners herein. We would, therefore, expect and hence direct the Ministry of Civil Aviation and the concerned officials in the Government of India to institute an inquiry and fix the responsibility on those officials who have continued to indulge the petitioners and if at the end of the same, they are found guilty of serious misconduct, that should not go unpunished. If their acts of omission and commission, at times found to be deliberate and ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 42/48 907-WP-195-2016.odt intentional, have caused loss to the public exchequer or were found to be having a criminal element, then, criminal prosecution should also be launched. Unless this is done, a strong message would not go to those officials and who think that public property belongs to them and they are free to exploit it at the cost of public exchequer. These premises are indeed huge and on the own showing of the Authority, the demand that was raised by them concerns the land in occupation of the petitioners and which ad-measures 7584.25 square meters. Then, there was a provisional demand raised by another letter on 2nd December, 2014, whereby unauthorized occupation of a hanger admeasuring 1846.54 square meters and NRB Space totaling to 1959.37 square meters by the petitioner no.1.
46. Thus, these are airport premises and in a prime locality in Mumbai. It is an aerodrome. It could not have been allowed to be usurped in this manner by the petitioners and we are surprised that even now the Authority maintains that this Court may take a strict view of the matter, but they are obliged to initiate eviction action and they are advised accordingly. We see some motive and ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 43/48 907-WP-195-2016.odt purpose even in this statement being made before this Court. We reject it outright. We are of the firm view that it is the petitioners who have approached this Court challenging the above actions of the Airports Authority of India and the Ministry of Civil Aviation. It is they who say that these actions are erroneous and ex facie illegal and unconstitutional. We do not find them to be so. If the Authority and of the nature set up by a statute is asserting its rights and seeking to exercise its powers conferred by law, which law has never been challenged, then, there is nothing illegal or unconstitutional about it. If the Authority is obliged to recover moneys for wrongful occupation by the petitioners and have estimated and calculated the amount which calculation also is undisputed till date, then, far from making any payment, the petitioners challenged the action itself as wrongful. Such an action can never be termed as wrongful once the nature of the premises and the rights conferred, so also the powers vesting in the Authority are taken into account. All of these are for discharging functions enumerated in the statute. Once we hold that the Authority was acting in terms of its statutory powers, then, there is nothing illegal, unconstitutional or violative of the ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 44/48 907-WP-195-2016.odt Constitutional mandate enshrined in Article 14 of the Constitution of India in the impugned actions. Each of these actions are, therefore, traceable to the powers conferred by the statute.
47. It is the petitioners who must blame themselves. It is the petitioners who filed a first writ petition and after failing in that, a second Writ Petition on the same cause of action. In the first Writ Petition, they challenged the very same action but sought no reliefs and were satisfied with the protection granted by this Court which was also conditional. Once they found that they had to comply with certain conditions and they could not obtain any benefit or relief unless they comply therewith, they promptly withdrew the Writ Petition. After the first Petition was withdrawn, they insisted that an order be passed by the 1 st respondent, but at the same time they did not make any payment. It is as if the Authorities are being obliged by the petitioners and instead of seeking any relief or direction against them from this Court, they have assisted the authorities in a way alleged by regulatising their failure in abiding by the statute and evicting the petitioners. That is how they have construed and interpreted the order of this Court ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 45/48 907-WP-195-2016.odt and acted completely contrary to it. After that Petition was withdrawn and disposed of as such, the second Petition on the same cause of action was not maintainable. Yet, on this Petition, the petitioners have persuaded Benches after Benches of this Court, firstly to issue notice, then to call upon an explanation from the Airports Authority of India and the Central Government and thereafter seeking to delay the obvious by purporting to amend the Petition. Even after the further pleadings until we noticed the state of affairs as noticed above and at the cost of public exchequer, we virtually forced the petitioners to argue this Petition and satisfy us as to how any relief can be granted to them. The petitioners have miserably failed to point out any provision of law or any factual material which would enable us to hold that the communications from the Airports Authority of India are illegal and unconstitutional.
48. The petitioners now cannot expect, and after their loss repeatedly, that the 1st respondent must act in accordance with law. It is like saying "I have no right, title and interest in the property, but I will go to the Court. If I loose in the Court, I can ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 46/48 907-WP-195-2016.odt still insist argue that the statutory authority can evict me only by taking recourse to law. That means I will not surrender or evict or hand over peaceful possession of the immovable property of somebody else of which is I am in illegal possession, unless that other person takes recourse to law. Else, I will complain that he is taking law in his hands by throwing me out forcefully". We do not know of any such law and we do not think the Airports Authority of India now should initiate any eviction proceedings. It is the petitioner's defence but based on their independent right in the property which has been demolished by us. It is the petitioner's conduct which is wrongful, illegal and they are rank trespassers. We do not think, therefore, that any proceedings for their eviction should be initiated. However, the loss caused to the public exchequer in terms of money can be of course recovered by the Airports Authority of India and for that, they can take recourse to appropriate proceedings. In that, the petitioners may very well say that loss is not to the tune computed by the Airports Authority of India or the computation thereof is not in the figure or sum set out by the 1st respondent and demanded as such in their communications. This limited controversy can be subject matter of ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 ::: vikrant 47/48 907-WP-195-2016.odt legal proceedings and in which the petitioners can raise appropriate pleas in defence. However, they cannot insist on the 1st respondent issuing any show cause notice for eviction, seeking a reply or explanation in response thereto, considering it, holding a personal hearing and passing a speaking order. All this is out of place and would be unnecessary and futile for the petitioners themselves have been unsuccessful in proving their right, title and interest in the immovable property and that too in the highest Court exercising writ jurisdiction. Therefore, that request and the statements in relation thereto are both rejected. Chapter V-A of the Airports Authority of India Act inits entirety need not be invoked save and except section 28-G thereof. We cannot make a mockery of the rule of law by accepting the stand of the petitioners merely because they continued to occupy the airport premises without any interest or title. There is no fresh lease and on their own showing, the earlier lease in the petitioners' favour expired in 1997. On this admitted factual position, the petitioners' arguments cannot be accepted. Acceptance of the same means putting a premium on the petitioners' dishonest and unlawful acts. That would mean we bend the law as per their dictate. ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 :::
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49. As a result of the above discussion, the Writ Petition fails. We grant the petitioners time of three months to vacate and hand over peaceful possession of the premises, at the end of which if the petitioners do not vacate the subject airport premises, the respondent nos. 1 and 2 can take forcible possession thereof and if necessary, with police assistance. The local police station shall render all assistance and co-operation to the Airports Authority of India in recovering possession from the petitioners and handing it over to the 1st respondent.
50. It is only because of the persuasive ability of the counsel for the petitioners that we do not impose any costs.
(SMT. BHARATI H. DANGRE, J.) (S. C. DHARMADHIKARI, J.) ::: Uploaded on - 08/02/2018 ::: Downloaded on - 08/02/2018 22:57:29 :::