[Cites 11, Cited by 0]
Bombay High Court
Airports Authority Of India vs Sanjay Surendrakumar Raval on 16 April, 2026
2026:BHC-OS:9469
Judgment-RPCD(L)-18565-2025-F.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CHAITANYA
ASHOK
JADHAV
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed by
CHAITANYA ASHOK
JADHAV
Date: 2026.04.16
18:19:45 +0530
IN ITS COMMERCIAL DIVISION
REVIEW PETITION (L) NO. 18565 OF 2025
IN
COMMERCIAL ARBITRATION PETITION NO. 219 OF 2025
Airports Authority of India ...Petitioner
Versus
Satyavan Vishnu Agate, ...Respondent
Sole Proprietor of M/s Vision Enterprises
WITH
REVIEW PETITION (L) NO. 18611 OF 2025
WITH
REVIEW PETITION (L) NO. 18641 OF 2025
Airports Authority of India ...Petitioner
Versus
Sanjay Surendrakumar Raval ...Respondent
WITH
REVIEW PETITION (L) NO. 18612 OF 2025
WITH
REVIEW PETITION (L) NO. 18647 OF 2025
Airports Authority of India ...Petitioner
Versus
Zen Media LLP ...Respondent
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WITH
COMMERCIAL ARBITRATION PETITION (L) NO. 33803 OF 2025
Sanjay Surendrakumar Rava ...Petitioner
Versus
Airports Authority of India ...Respondent
Mr. Pravin Samdani, Senior Advocate a/w Ms. Shilpa Kapil a/w
Adv. Chidanand Kapil, Adv. Darshit Jain, Adv. Shruti Bhatt, Adv.
Aishwarya Mall, Adv. Vishwabharati Devkhile, for Airports
Authority of India.
Mr. Samit Shukla a/w Vaibhavi Bhalerao i/b Trilegal, for the
Respondent in RPCD(L)/18565/2025.
Mr. Karl Tamboly, for the Respondents.
CORAM : SOMASEKHAR SUNDARESAN, J.
DATE : APRIL 16, 2026.
JUDGEMENT:
Context and Factual Background:
1. The captioned Review Petitions seek a review and recall of the
orders dated March 25, 2025, March 26, 2025, April 9, 2025 and April 24,
2025 ("Orders under Review"), passed in various petitions filed under
Section 9 of the Arbitration and Conciliation Act, 1996 ("Arbitration Act").
Commercial Arbitration Petition No. 219 of 2025 is taken up as the lead matter
and the outcome in this judgement would apply to all the other captioned
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Review Petitions and the Section 9 Petitions in the same manner since the
issues that arise are common and identical across all proceedings.
2. The core ground of review sought in these Review Petitions is that
Chapter-VA of the Airports Authority of India Act, 1994 ("AAI Act") contains
a full-fledged statutory procedure for eviction of persons in "unauthorised
occupation" of "airport premises". It is contended that although the Learned
Additional Solicitor General had been given instructions by Airports Authority
of India ("AAI") to consent to the reference of the matters to arbitration, with
the only request from AAI having been for appointment of a different
individual arbitrator in each of the matters, the matters covered by these
proceedings are not at all arbitrable as a matter of statutory stipulation, and
therefore jurisdiction could not have been conferred on any Arbitral Tribunal
by consent.
3. Towards this end, Mr. Pravin Samdani, Learned Senior Advocate on
behalf of the Review Petitioner, AAI, relies on Chapter-VA of the AAI Act read
with Clause 27 of the General Terms of Contract appended to the licence
agreements containing the arbitration clause. He would submit that the
disputes pertain squarely to eviction of unauthorised occupants and entail an
ouster of jurisdiction of all Courts in respect of consideration of such matters.
As regards the explicit consent granted and recorded by the learned law officer
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under instructions, Mr. Samdani's submission is that the grant of consent for
the appointment of an arbitrator cannot operate as estoppel against a
statutory position.
4. The Review Petitioner contends that merely because the Review
Petitioner agreed to keep the termination notices that were the subject matter
of the Section 9 Petition in abeyance, and agreed to refer the parties to
arbitration, the statutory hurdle posed by Chapter-VA of the AAI Act cannot be
overcome. The contention is that by operation of Section 28B of the AAI Act,
the disputes would squarely fall in the domain of the Eviction Officer, to the
exclusion of all other forums.
5. Mr. Karl Tamboly, Learned Advocate leading all the Learned
Advocates for various parties in the original Section 9 Petitions, would submit
that the issue being raised by the Review Petitioner is a subject matter of
jurisdiction of the Arbitral Tribunal already constituted by consent. Under
Section 16 of the Act, the Arbitral Tribunal is statutorily empowered to rule on
its own jurisdiction. Therefore, he would contend, the issue should be left to
the Arbitral Tribunal. Mr. Tamboly would update the Court that based on
AAI's behaviour with the Arbitral Tribunal that had been appointed, the
Learned Sole Arbitrator resigned leaving the Arbitral Tribunal un-manned.
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Therefore, the course of action to be taken, he would submit, is that such
arbitrator needs to be substituted under the Arbitration Act.
Analysis and Findings:
6. Having heard the parties and upon examination of their
contentions, what falls for consideration is the objection on the grounds of
inherent lack of jurisdiction for formation of an Arbitral Tribunal in disposal
of Section 9 Petitions.
7. A jurisdictional objection to arbitration can arise from the scope of
the arbitration agreement, or also from the operation of any law that makes
the dispute non-arbitrable. AAI would fairly concede that it indeed agreed to
proceed to arbitration. AAI would also concede that its earlier stance was in
fact, that each dispute should have a separate and distinct arbitrator.
However, realisation having dawned on the AAI that such a stance was
contrary to law, AAI would contend that regardless of how the situation looks,
AAI could have never accorded consent to proceed to arbitration in view of
Chapter VA of the AAI Act.
8. Ordinarily, and in particular, in the exercise of the jurisdiction
under Section 11 of the Arbitration Act, when parties to a dispute agree to
proceed to arbitration, and a formally executed arbitration agreement is prima
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facie discernible, substantial existential questions about the arbitrability fall in
the domain of the Arbitral Tribunal. Courts would accept the consent, leave all
contentions open, and enable the parties to proceed to arbitration leaving the
parties to their devices on how to present issues to the Arbitral Tribunal in
accordance with law. Such issues can include objections to jurisdiction.
Under Section 16 of the Arbitration Act, participation in constitution of the
Arbitral Tribunal would not be a bar on raising objections on jurisdiction.
Such situations typically arise in Section 11 proceedings but could also arise, as
in this case, even under Section 9 of the Arbitration Act, where the parties
agree that the Arbitral Tribunal would be best placed to consider what
interlocutory arrangement would best preserve the subject matter of the
arbitration agreement.
9. The peculiar situation in this case is that the appointment had been
effected by consent of the parties in the Section 9 jurisdiction and not in the
course of proceedings under Section 11 of the Arbitration Act. Moreover, the
Arbitral Tribunal appointed by consent of the parties is currently vacant, with
the Learned Sole Arbitrator having resigned from office. Therefore, there is no
Arbitral Tribunal in place today to consider the jurisdictional objection. At
such juncture, the Review Petitions have been filed.
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10. Ordinarily, even if an arbitration agreement had exclusion or even
in the absence of any arbitration agreement, parties to a dispute can always
consent to proceed to arbitration, with such consent constituting the
arbitration agreement. However, where there is a statutory bar, the question
that would arise is whether the parties can at all agree to proceed to
arbitration. This would be a neat question of jurisdiction. The question of
jurisdiction would ordinarily lie before the Arbitral Tribunal but in Section 9
proceedings, the question of jurisdiction would be considered by the Section 9
Court.
11. In these circumstances, the question that emerges is whether
consent for formation of the Arbitral Tribunal having been crystallised, the
Arbitral Tribunal should be substituted leaving it to the Arbitral Tribunal to
consider the jurisdictional objection under Section 16; or whether consent,
now sought to be withdrawn, the validity of such consent necessitates
adjudication.
12. Against this backdrop, the core ground for AAI demurring on the
consent it granted earlier must be examined. The real issue is whether the
dispute in question is non-arbitrable by operation of the AAI Act. The Arbitral
Tribunal appointed earlier by consent also having vacated office, whether
fresh consent would be necessary or whether substitution should be effected
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without the need for any fresh consent is also to be considered. Conversely,
whether the review of the consent order originally passed is warranted before
any substitution is also to be considered.
13. Therefore, one has to examine the provisions of Section 28A, 28B
and 28M of the AAI Act that are pressed into service, to see if there is at least a
prima facie case made out about non-arbitrability leading to the consent
granted under instructions to the Learned Additional Solicitor General being
regarded as consent contrary to law.
14. The following provisions of the AAI Act are pressed into service:
"28A. Definitions.--In this Chapter, unless the context otherwise requires,--
(a) "airport premises" means any premises--
(i) belonging to airport;
(ii) taken on lease for the purposes of airport'
(iii) acquired for the Authority under the provisions of the Land Acquisition
Act, 1894 (1 of 1894) or any other corresponding law for the time being in force.
Explanation.--For the removal of doubts, it is hereby declared that for the purposes
of this clause, "airport" includes private airport;
(b) "eviction officer" means an officer of the Authority appointed as such by it under
section 28B;
(c) "premises" means any land or building or part of a building, and includes--
(i) the garden, grounds and outhouses, if any, appertaining to such building or
part of a building; and
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(ii) any fittings affixed to such building or part of a building for more
beneficial enjoyment thereof;
(f) "unauthorised occupation", in relation to any airport premises, means the
occupation by any person of the airport premises without authority for such
occupation and includes the continuance in occupation by any person of the airport
premises after the authority (whether by way of grant or any other mode of transfer)
under which he was allowed to occupy the premises has expired or has been
determined for any reason whatsoever."
"28B. Appointment of eviction officers.--The Authority may, by general or special
order in writing, appoint such number of its officers, as it thinks fit, to be eviction
officers for the purposes of this Chapter, and define the local limits within which, or
the categories of airport premises in respect of which, the eviction officers shall
exercise the powers conferred and perform the duties imposed, on eviction officers by
or under this Chapter."
"28M. Finality of orders.-- Subject to the provisions of this Act, every order made
by an eviction officer under this Chapter shall be final and shall not be called in
question in any suit, application, execution or other proceeding and no injunction
shall be granted by any court or other authority in respect of any action taken or
intended to be taken in pursuance of any power conferred by or under this Chapter."
[Emphasis Supplied]
15. Clauses 27.1 and 27.10 of the General Terms and Conditions,
annexed to the Licence Agreement too are relied upon, and read as follows:
GENERAL TERMS AND CONDITIONS
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"(27) Dispute Resolution:
27.1 All disputes and differences arising out of or in any way touching or
concerning this Agreement except those the decision whereof is otherwise herein
before expressly provided for or to which the AAI Act, 1994 and the rules framed
thereunder which are now enforce of which may hereafter come into force are
applicable (the "Dispute '') shall be dealt as under ...."
27.10 No dispute shall be referred for resolution under this clause through
arbitration in matters for which eviction & recovery procedure is provided under
Chapter -VA of the Airports Authority of India Act, 1994 as amended by Act 2003."
[Emphasis Supplied]
16. The contractual provisions extracted above do not really need to
detain this Court's attention since parties can amend contract by consent.
However, the real issue is whether an apparent error has come about by
operation of Chapter VA of the AAI Act. Whether AAI's consent was contrary
to law (even if Clause 27.10 extracted above was not in existence) is to be
considered
17. A plain reading of Section 28A(f) of the AAI Act would prima facie
indicate that occupation of airport premises even if authorised earlier by AAI,
would constitute unauthorised occupation if such authorisation is determined
for any reason whatsoever. Whether the dispute involved is actually a dispute
over premises or whether occupation is incidental to some other larger
transaction is a mixed question of fact and law. Mr. Samdani would contend
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that a determination of that question too is in the exclusive domain of the
Eviction Officer by reason of the prohibition under Section 28M of the AAI
Act, on any Court from granting any injunction on any application filed by any
person in respect of any action intended to be taken by the Eviction Officer
under Chapter VA of the AAI Act.
18. Mr. Tamboly would contend that it would be absurd to fragment
and segregate the element of occupation from the real substance of the
dispute, which is evidently subject matter of arbitration as is seen in Clause
27.1 of the General Terms and Conditions, extracted above. By characterising
every dispute involving some use of airport premises as eviction proceedings,
Mr. Tamboly would submit, the binding agreement to arbitrate ought not to be
frustrated. This was AAI's own understanding, which is why it even consented
to appointment of the Arbitral Tribunal in disposal of the Section 9 Petitions,
he would submit, to contend that there is no apparent error that necessitates a
review.
19. Had this Court been in a Section 11 jurisdiction, this Court's scope
of review would have been confined to examination of the existence of a
formally executed Arbitration Agreement, leaving arbitrability as a matter of
existential substance to the Arbitral Tribunal, under Section 16 of the
Arbitration Act. In the instant case, the issue arose under Section 9 of the
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Arbitration Act and it was solely the consent of the parties accorded in Court
that led to the formation of the Arbitral Tribunal, without any need for this
Court to examine the issue of arbitrability.
20. That Arbitral Tribunal is now vacant. Meanwhile, the Review
Petitions have been filed, with AAI demurring on the consent accorded earlier,
on the ground that the consent was in conflict with binding provisions of the
AAI Act. In fact, strangely, after according consent, the Review Petitioner
challenged the orders before the Learned Division Bench of this Court under
Section 37 of the Arbitration Act, which refused to entertain the challenge on
the ground that a consent order was not amenable to appeal. However, the
Learned Division Bench took on record the submission of the Review
Petitioner that it intends to pursue a review. The Review Petitions are now
under consideration on the ground that the consent to proceed to arbitration
was in direct conflict with Section 28A(f) read with Section 28M of the AAI
Act.
21. Since this Court had no occasion to consider the objections on
ouster at that stage, AAI submits that the Review Petition needs consideration
since the grant of consent contrary to law to constitute an Arbitral Tribunal is
an apparent error of law. In contrast, the Respondents submit that the stop
work notice issued by the AAI on December 31, 2024 had cited administrative
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reasons which led to the Section 9 Petitions. It is during the pendency of the
Section 9 Petitions, that termination was effected on March 22, 2025, without
the issuance of any show cause notice.
22. The AAI contends that each and every License Agreement executed
with the Original Petitioners was purportedly found to be entirely illegal
without due internal authorisation to grant the licences. It was seen when
considering the Section 9 Petitions that the License Agreements were an
outcome of a process conducted entirely in the public domain, making it hard
to believe that AAI was oblivious of an unauthorised grant of licenses. Against
this backdrop, with AAI consenting to leave it to the Arbitral Tribunal to
decide interlocutory measures, the Section 9 Petitions were disposed of by
appointing an Arbitral Tribunal by consent of parties.
23. Having considered the issue and the peculiar juncture that has
arisen in this matter, I cannot ignore the fact that prima facie, the term
"unauthorised occupation" brings within its sweep any occupation of any
airport premises where the authorisation for occupation has been determined.
The authorisation for occupation may have been under a commercial contract,
but if that underlying authority to occupy premises has been determined, one
would indeed have to consider if Section 28M of the AAI Act would be
attracted. Had the Section 9 Petitions been contested in the normal course by
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both sides when the proceedings came up originally, this issue would have
been dealt with, since existence of arbitration agreement and arbitrability have
to be considered when granting relief under Section 9 of the Arbitration Act.
This was not a case of Section 11 jurisdiction, which explicitly confines the
scope of jurisdiction to examination of whether a validly executed formal
arbitration agreement exists.
24. Indeed, the Respondents present a nuanced counterview that also
needs consideration under the Section 9 Petitions. None of these issues were
considered since the AAI agreed not to disturb the status quo and also agreed
to proceed to arbitration. The only request from AAI had been, inexplicably,
that each License Agreement ought to have a separate Arbitral Tribunal.
25. The equities of the situation and the past conduct of AAI, however,
cannot come in the way of a clear question of law that needs to be considered.
Specifically, it ought to be considered if the License Agreements can be
regarded as agreements that authorise occupation of airport premises and
whether an application under Section 9 of the Arbitration Act would be
prohibited by operation of Section 28M of the AAI Act. Moreover, there is no
functional Arbitral Tribunal today since the Learned Arbitrator has vacated
office. Even if the Respondents are right about the record indicating that the
AAI's conduct led to the Arbitral Tribunal having resigned, it is arguable that
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authorisation for occupation of airport premises duly executed by AAI with the
Original Petitioners was revoked.
26. Clause 27.10 of the General Terms and Conditions explicitly
excludes disputes and differences covered by Chapter-VA of the AAI Act.
Therefore, whether or not termination of the Licence Agreement would
automatically lead to the occupation by the licensees to constitute
"unauthorised occupation" would present a mixed question of fact and law,
which would warrant consideration, even under Section 9 of the Arbitration
Act, consideration of which did not take place in view of the disposal of those
Petitions by consent. A prima facie case of determination of authorisation can
be discerned and indeed the circumstances presented by the Original
Petitioners too warrant consideration under Section 9 of the Arbitration Act,
under which the Orders under Review were passed.
27. Mr. Tamboly's suggestion that this should be left to the Arbitral
Tribunal would have been logical had the constitution of the Arbitral Tribunal
been under Section 11 of the Act, but since the Arbitral Tribunal came to be
appointed by consent under Section 9 of the Act, with no occasion for this
Court to consider the issues now raised in the Review Petition, in my opinion,
the ends of justice warrant a reconsideration of the original Section 9 Petitions
afresh on merits, and a case for review on merits has been made out.
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28. The issue of jurisdiction would have to be considered by the Section
9 Court afresh. However, in the interregnum, there has been a change in the
roster and the jurisdiction under Section 9 of the Arbitration Act is no longer
with this Bench. Therefore, it would be appropriate to restore the Original
Section 9 Petitions and grant liberty to the parties to present their contentions
to the appropriate Bench having the Section 9 jurisdiction in its roster for
consideration of the Section 9 Petitions afresh on merits.
29. It is made clear that nothing contained in this judgement is meant
to be a pronouncement on whether or not the disputes are arbitrable. This
judgement is also not a decision on the matter of jurisdiction of the Section 9
Court one way or the other. All that is being done is that the Section 9
Petitions are restored since an arguable case for the consent accorded by AAI
through the Learned Additional Solicitor General potentially being in conflict
with Chapter VA of the AAI Act has been made out. How such argument must
be adjudicated is subject matter of the Section 9 jurisdiction, which is not with
this Bench today due to the change in roster.
30. Therefore, the Review Petitions are allowed, and the Section 9
Petitions are restored, leaving all contentions open, enabling the parties to
present afresh their submissions on merits as well as on jurisdiction, to the
Section 9 Court.
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31. It was the statement of AAI that it would not take further action on
the termination notices that led to the status quo. There is no prohibition in
law for AAI to make such a statement even under Section 28M of the AAI Act,
pending consideration of the Section 9 Petitions that are revived. It would be a
complete travesty if the termination notices were to be acted upon even before
the Section 9 Court hears the original Section 9 Petitions afresh on jurisdiction
and on merits. Therefore, until the Section 9 Court convenes to hear the
restored Section 9 Petitions and passes appropriate orders, the position
obtaining as of today shall continue. Mr. Samdani has also fairly stated that
AAI has not acted further in deference to and in consonance with the
commitments made earlier to this Court. Now that the Section 9 Petitions are
being restored and will be considered afresh, it would be entirely for that
Section 9 Bench to decide what arrangements to make pending consideration
of the restored Section 9 Petitions.
32. It is clarified for the avoidance of doubt that all observations made
in this judgement are only in furtherance of the need to consider whether the
Section 9 Petitions deserve to be restored.
33. All actions required to be taken pursuant to this order shall be
taken upon receipt of a downloaded copy as available on this Court's website.
[ SOMASEKHAR SUNDARESAN, J.]
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