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others, such as customs, immigration, security, etc., remained with AAI. The OMDA is essentially a public-private partnership, where a public function (or set of public functions) to be performed by an authority constituted under a statute, the AAI, was permitted to be carried out by a private enterprise, MIAL.

4. To be effective, the OMDA required the execution of several further documents and agreements. We are not concerned with all of these. It is sufficient to note that among the other documents, deeds and agreements executed pursuant to the OMDA were two lease deeds, an agreement in respect of CNS/ATM facilities, a state support agreement with the Union of India and an escrow agreement. Other than a supplemental lease deed, which is dated 15th May 2009 and which added an additional 101,175 sq.mts. to MIAL's lease, all the other agreements were executed between 26th and 28th April 2006. The two agreements following the OMDA and 5 of 69 APP(L)365-13-F material for our purposes are (i) A State Support Agreement dated 27th April 2006 between the State Government and MIAL for providing MIAL with State Government support for the modernization and upgrading of the Airport; and (ii) an Agreement dated 12th December 2006 between MIAL and the 5th Respondent, the Mumbai Metropolitan Regional Development Agreement ("MMRDA") for freeing some of the AAI land of encroachments.

III

15. The foundation of Mr. Kapadia's submissions is that the Slum Rehabilitation Contract is not independent of or separate from the MIAL-MMRDA agreement and the contractual relationship between HDIL and the Slum Rehabilitation Authority ("SRA"), the 6th Respondent; therefore, HDIL's Petition for reliefs against those Respondents is maintainable. Mr. Kapadia bases this submission on (i) an analysis of the Slum Rehabilitation Contract and (ii) contemporaneous documents reflecting the conduct of parties. It seems not to be seriously disputed that HDIL was selected for the project because, apart from its professed expertise, skills and capabilities in large scale slum clearance projects, the key factor that distinguished it from competing bidders was that it had, or was in a position to acquire, a significant area as a "land bank". This land bank was to be used in the construction of tenements for the rehabilitation of eligible slum dwellers upon their relocation from the Airport land. According to HDIL, the Slum Rehabilitation Contract's terms govern the use of this land not only for the construction of the rehabilitation tenements but also their utilisation 20 of 69 APP(L)365-13-F by the Slum Rehabilitation Authority. The Slum Rehabilitation Contract contains a description of this land bank (called "the Developers' Land").1 This land was already available with HDIL. It subsequently acquired seven plots of land closer to the airport at a cost of some Rs.1700 crores. The land later acquired also formed part of the 'Developers' Land'. The Slum Rehabilitation Contract required HDIL to obtain permissions from the SRA (including Letters of Intent) for construction of rehabilitation tenements on this land; to construct the rehabilitation tenements; to form housing societies; relocate protected slum dwellers to those tenements and to transfer the lands in a stipulated manner. The Developers' Land was to be used only for these purposes, and the Slum Rehabilitation Contract imposed negative covenants on HDIL from encumbering this land or creating any third party rights on it. The construction work was to be monitored by MIAL through its Project Management Consultant, and this is a provision of the agreement between MIAL and MMRDA. Slum rehabilitation schemes for the Developers' Land were approved by the SRA. A significant portion of that land was conveyed to the SRA. Mr. Kapadia submits that this makes it clear that the HDIL-acquired lands were always a part of the Slum Rehabilitation Contract and HDIL is therefore entitled to reliefs in respect of that land. He was at pains to point out that contrary to the submissions made by the SRA, the rehabilitation tenements on the Developers' Land could not be used for any purpose than resettlement of the eligible slum dwellers on the Annexure 3, read with Clause 1.1 (Definitions) of the Contract.

16. Similarly, MMRDA's agreement dated 12th December 2006 with MIAL is not, in Mr. Kapadia's submission, independent of the Slum Rehabilitation Contract as the Respondents would have it. He drew our attention to Clause 3.1(v)(q) of the Slum Rehabilitation Contract. This provides that amounts due to MMRDA from MIAL under their 12th December 2006 agreement were to be reimbursed by HDIL, and that HDIL would assume all the obligations of MIAL under the 12th December 2006 agreement. Further, Mr. Kapadia submitted, even the statutory framework governing slum rehabilitation, specifically Development Control Regulation 33(10), brought about a direct relationship between HDIL and the SRA, and the latter could not possibly have sanctioned the rehabilitation scheme but for the Slum Rehabilitation Contract. Under that Development Control Regulation, HDIL received Transferable Development Rights ("TDR") in respect of the slum rehabilitation scheme sanctioned on the Developers' Land. In addition, HDIL was also entitled to receive rights in a portion of the airport land cleared of slums. HDIL contends that the TDR it got was not its full recompense, because that TDR's value was about Rs.2400 crores, while HDIL had actually spent over Rs.4000 crores. That, he 22 of 69 APP(L)365-13-F submits, is the only reason that HDIL was granted additional rights in respect of a portion of the cleared airport land. HDIL therefore has interests in the form of development entitlements arising from the Developer's Land (i.e., the land bank used for rehabilitation tenements) as also a contractually defined portion of the cleared airport lands.

VI

34. HDIL also contends that MIAL is itself in breach of its obligations under the Slum Rehabilitation Contract, and these AIR 1946 Bom 469 The force majeure clause was not, however, invoked at this time, but only much later.

42 of 69 APP(L)365-13-F breaches disentitle it from terminating the contract. According to HDIL, MIAL was to "obtain" a tripartite agreement between HDIL, MIAL and MMRDA or, at the very least, to get MMRDA to perform its obligations under the MIAL-MMRDA agreement of 12th December 2006. This MIAL failed to do, and this was a fundamental breach of a primary obligation. MMRDA's promised performance was fundamental to HDIL's entering into the Slum Rehabilitation Contract and MIAL ought, therefore, to have got MMRDA to ratify the Slum Rehabilitation Contract and fulfil its obligations under its agreement with MIAL. Mr. Kapadia drew attention to a letter dated 7th May 2008 from MIAL to MMRDA in this regard, and to the letter of 9th August 2012 from MMRDA to the Urban Development Department of the Government of Maharashtra. Mr. Kapadia says that this letter of 9th August 2012 shows MMRDA distancing itself from HDIL and refusing to honour its obligations under the MMRDA-MIAL agreement. It does not. In that letter, as Mr. Dwarkadas pointed out, MMRDA has only said that neither MIAL, nor HDIL with whom it had no contractual relationship, should demand of MMRDA actions and compliances that fell within the domain of the SRA. MMRDA does not question HDIL's appointment; it could not, for it had already granted its No Objection Certificate to HDIL's appointment. It only questions the demands being made of it. MMRDA's letter of 9th August 2012 is to the Principal Secretary of the Urban Development Department of the Government of Maharashtra. It references an earlier communication of exactly two years earlier, 9th August 2010, from 43 of 69 APP(L)365-13-F the Urban Development Department in which the latter asked the MMRDA to function as the Nodal Agency and to assume responsibilities that MMRDA later contended were beyond its statutory remit. Moreover, we also cannot accept Mr. Kapadia's submission that the Clause 3.1(q)(v) of the Slum Rehabilitation Contract required MIAL to cause a tripartite agreement to be executed between these three parties. That clause does reference the MMRDA-MIAL agreement but only says that MIAL and HDIL shall consult with MMRDA to decide the "future scope and role of MMRDA in the Slum Rehabilitation Project". It is difficult to see how this can at all be said to be a contractual breach by MIAL of its obligations under the Slum Rehabilitation Contract.