Aero Club Of India vs Union Of India & Ors
2017 Latest Caselaw 2988 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 5403/2017
       AERO CLUB OF INDIA                               ..... Petitioner

                           Through:     Mr Jai Dehadnai, Ms Manmeet
                                        Kaur, Ms Riya and Mr Atharva
                                        Khadse, Advocates.

                           versus

       UNION OF INDIA & ORS                             ..... Respondents

                           Through:     Mr Nirvikar Verma, Advocate
                                        for UOI/R-1.
                                        Mr Digvijay Rai, Advocate
                                        with Mr Rajkumar Khanagwal,
                                        Jt. GM (Law) and Mr Puneet
                                        Gupta, APO for AAI.
       CORAM:
       HON'BLE MR. JUSTICE VIBHU BAKHRU
                    ORDER

       %            04.07.2017
VIBHU BAKHRU, J

1. The petitioner - a company incorporated under Section 25 of the Companies Act, 1956 - has filed the present petition impugning an order dated 16.06.2017 (hereafter 'the impugned order') passed by the Eviction Officer, Airport Authority of India (respondent no. 3) holding the petitioner to be in unauthorized occupation of a property measuring 1616 sq. mts. near the Safdarjung Airport, New Delhi - 110003 (hereafter referred to as 'the subject land').

2. The petitioner is an apex body of all Flying Clubs, Gliding Clubs and other aero sports organizations in India. It is stated that the petitioner club is also recognized by the Ministry of Human Resource Development of the Government of India.

3. Pursuant to a request made by the petitioner, it was allotted a plot of land measuring 120 feet by 120 feet and this was communicated by the office of the Director General of Civil Aviation (DGCA) by a letter dated 03.08.1983. Apparently, the petitioner was not satisfied with the allotment and made a representation for a larger plot of land. Its request was forwarded by the Government of India, Ministry of Tourism and Civil Aviation (Department of Civil Aviation) to DGCA under cover of a letter dated 22.03.1984 for examination with a request for immediate action.

4. By a letter dated 08.10.1984, the Government of India, Ministry of Tourism and Civil Aviation (Department of Civil Aviation) communicated its approval to the proposal for allotment of a plot of land measuring 120 feet by 145 feet at Safdurjung to the petitioner for a period of thirty years from the date of taking over possession of the land for construction.

5. Thereafter, the petitioner was granted a licence to occupy the subject land for a period of thirty years commencing 19.09.1983 at a licence fee of ₹1 per annum, pursuant to licence agreement dated 27.12.1984.

6. The said licence expired by efflux of time on 18.09.2013. The

petitioner applied for renewal of the licence for a period of 99 years by its letter dated 03.11.2008 and it is the petitioner's case that its request for renewal was favourably considered by the Ministry of Civil Aviation (respondent no.1) as well as by respondent no. 2, the Airport Authority of India (hereafter 'AAI').

7. Prior to petitioner's request for renewal of licence, AAI had by its letter dated 16.07.2007, had forwarded an invoice for a sum of ₹93,96,874/- as licence fee for the period 01.09.1983 to 31.08.2007. According to the petitioner, the said demand was unauthorized, wholly unjustified and illegal as in terms of the licence agreement, the licence fee for the subject land was fixed at ₹1 per annum.

8. AAI sent another letter dated 23.01.2013 and this time demanded a sum of ₹2,41,28,097/- as licence fee for the period upto 18.09.2013. It is asserted that subsequently, the petitioner also received two other letters dated 24.03.2014 and 08.08.2014 from AAI enclosing invoices of ₹2,76,89,365/- and ₹3,15,23,179/- respectively. The petitioner also stoutly disputes the said demand inter alia on the ground that the same is unauthorized, illegal and arbitrary.

9. The petitioner also sent letters dated 22.08.2013 and 26.08.2013 to Government of India, Ministry of Civil Aviation and DGCA respectively, requesting for renewal of licence.

10. On expiry of the licence period, the petitioner sent a cheque for ₹30 as licence fee for the period of 30 years. However, the same was not accepted by AAI and the cheque was returned under the cover of

its letter dated 21.10.2013.

11. The petitioner states that Government of India, Ministry of Civil Aviation had issued directions to AAI to consider the renewal of licence in favour of the petitioner which was favourably considered by AAI in its 157th Meeting of the Board of Directors held on 18.12.2013.

12. On 20.04.2015, AAI sent a letter inter alia stating that the petitioner‟s licence to occupy the subject land had not been renewed and called upon the petitioner to vacate the subject land, failing which proceedings would be initiated in accordance with the regulations of AAI. Thereafter, the Board of Directors of AAI in a meeting held on 15.12.2015 resolved to withdraw their proposal regarding renewal of the petitioner's licence for the subject land.

13. Since the petitioner did not vacate the subject land, the Eviction Officer of AAI (respondent no.3) issued a show cause notice dated 07.09.2016 under Section 28C of the Airports Authority of India Act, 1994 (hereafter 'the AAI Act') inter alia expressing his opinion that the petitioner was in unauthorised occupation of the subject land and called upon the petitioner to show cause as to why it should not be evicted.

14. The petitioner replied to the show cause notice by a letter dated 21.10.2016. AAI also filed its rejoinder to this reply. The Eviction Officer after hearing the petitioner, passed the impugned order.

Submissions

15. Mr Jai Dehadnai, learned counsel appearing for the petitioner contended (a) that the subject land was not a part of the airport premises under the AAI Act and the show cause notice issued by the Eviction Officer was without jurisdiction; (b) that the subject land vested with the Government of India, Ministry of Urban Development who by its letter dated 13.06.2006 had withdrawn the ownership of the subject land from AAI. Thus, all actions of AAI as the owner of the subject land were illegal and invalid; (c) that AAI had favourably considered the proposal for renewal of the licence in its 157th Board Meeting dated 18.12.2013 and, therefore, its subsequent decision taken in its 167th Board Meeting held on 15.12.2015 was illegal; (d) that AAI had already sent the proposal to the competent authority and did not have any authority to withdraw the same; (e) that the show cause notice dated 07.09.2016 was issued on erroneous ground that the licence agreement had expired on 18.09.2013 without considering that the proposal to renew the same was pending consideration; and (f) that the petitioner was sought to be evicted on the ground of non-payment of licence fee but the impugned order was passed on the basis that AAI required the subject land for its own use. No such ground was stated in the show cause notice and, therefore, the impugned order was passed in violation of the principles of natural justice as the petitioner had no occasion to respond to the ground that AAI required the subject land for its own use.

16. Mr Dehadnai referred to the decision of the Supreme Court in Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of

Bombay: (1989) 3 SCC 293 and on the strength of the said decision contended that even in contractual matters, an arbitrary action of an authority could be assailed as violative of Article 14 of the Constitution of India. He further submitted that AAI being a State within the meaning of Article 12 of the Constitution of India could not behave like a private landlord. He also cited the decision in the case of Neelima Misra v. Harinder Kaur Paintal and Ors.: (1990) 2 SCC 746 and submitted that the respondents, being State, are enjoined to conduct themselves fairly.

Reasoning and Conclusion

17. At the outset it is necessary to observe that, concededly, the licence granted to the petitioner in respect of the subject land expired on 18.09.2013. Thus, indisputably, the petitioner does not have any legal right to occupy the subject land. It is also well settled that a licencee does not acquire any interest in the property and the possession of the same continues to remain with the owner. (See: Thomas Cook (India) Ltd. v. Hotel Imperial and Ors.: (2006) 127 DLT 431, Associated Hotels of India Ltd. v. R. N. Kapoor: AIR 1959 SC 1262 and Corporation of Calicut v. K. Sreenivasan: (2002) 5 SCC

361.)

18. The contention that the subject land is not a part of the airport premises under the AAI Act is inconsiderable. The expression „airport premises‟ is defined in Section 28A of the AAI Act which reads as under:

"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;

XXXX XXXX XXXX

(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
          (ii)      any fittings affixed to such building or part of a
                    building for more beneficial enjoyment
                    thereof;"

19. It is apparent that the term „airport premises‟ would include not only the landing and taking off area for aircrafts but would also include a much larger area, which may be used for aircraft maintenance or passenger facilities or other extended activities. This would also include surplus land retained for future requirements or for other purposes. The expression 'airport premises' as used in chapter VA of the AAI Act has to be construed in wide terms. This is also the

view of the Division Bench of the Bombay High Court in Edward v.

J.R. Aryan and Ors.: 2015 SCC OnLine Bom 6565.

20. In the present case, the subject land forms a part of Safdarjung Airport area. This is amply clear from the material on record.

21. By a letter dated 22.03.1984, the Government of India, Ministry of Tourism and Civil Aviation (Department of Civil Aviation) forwarded the request of the petitioner for allotment of a larger plot.

22. On 08.10.1984, the Government of India, Ministry of Tourism and Civil (Department of Civil Aviation) sent a letter communicating the approval for the proposal to allot a plot of land measuring „120'x 145' at „Safdarjung Airport' to the petitioner for a period of 30 years. This was expressly made subject to the condition that the subject land is surplus to the requirement of Civil Aviation Department. Concededly, this condition was complied with. Thus, it is clear that the subject land at the material time was surplus land at the Safdarjung Airport.

23. The subject land was allotted to the petitioner by the Office of the Aerodrome Officer, Civil Aviation Department of the Government of India in terms of the letter dated 17.12.1984. The said letter also clearly mentioned the subject land to be located at the Safdarjung Airport. Admittedly, the subject land was surplus at the material time. The expression „belonging to airport‟ (as used in Section 28A of the AAI Act) would plainly include the subject land as concededly, it was allotted to the petitioner on the condition that it was surplus; this obviously meant surplus land of the Safdarjung Airport.

24. The licence issued in favour of the petitioner was also captioned as „Licence of Sites on Civil Aerodrome for the Construction of Temporary Building, Structures or Installations‟. The opening paragraph of the licence is relevant and reads as under:-

"The grantor hereby grants unto the Licensee licence and authority during the continuance of this licence to occupy the plot of land at the Civil Aerodrome Safdarjung admeasuring approximately 17400 Sq. ft. (120‟ x 145‟) Square Yds./Mts. And delineated as marked in red on Sketch/Drawing No.AV- 21012/15/75-5 dated 08/10/1984 attached to this Licence on the terms and conditions stated herein."

This also clearly indicates that the licence was for the subject land located at „Civil Aerodrome Safdarjung'.

25. The contention that the letter dated 03.08.1983 addressed by DGCA to the petitioner which referred to the location of the subject land „adjacent to the Petrol Pump near the Safdarjang Airport' indicated that the subject land was not a part of the premises, is unmerited. The said letter only indicated the precise location of the subject land within the airport area and does not establish that the subject land was not a part of the airport premises.

26. The petitioner‟s claim that the subject land belongs to the Ministry of Urban Development and not AAI, apart from being of little relevance, is also unmerited. The National Airports Authority was constituted under the National Airports Authority Act, 1985 and Section 13 of the said Act expressly provided that from such date as

may be appointed by the Central Government, by notification in the Official Gazette, all properties and other assets as vested with the Central Government for the purposes of any aerodrome, civil enclave and aero-nautical communication station and administered by the DGCA would vest with the National Airports Authority. The Safdarjung Airport at the material time was designated as a National Airport. Subsequently, AAI was constituted under the AAI Act. And, by virtue of Section 13 of the AAI Act, the undertakings of the International Airports Authority and the National Airports Authority, vested with AAI.

27. The contention that the ownership of the subject land is disputed and, therefore, the Eviction Officer had no jurisdiction to pass the impugned order is also unmerited. The Government of India, Ministry of Urban Development, Land and Development Office had issued a Office Memorandum dated 21.03.2016, which is set out below:-

"Government of India Ministry of Urban Development Land and Development Office Nirman Bhawan, New Delhi

No.L-IIA/11/(114)/2016/67 Dated the 21.03.2016

OFFICE MEMORANDUM

Sub: Restoration of land at Safdarjung Airport to Ministry of Civil Aviation/Airports Authority of India.

I am directed to say that it has been decided to restore the land of Safdarjung Airport area measuring 184.153 acres to Ministry of Civil Aviation/Airports Authority of India, resumed earlier vide this office letter Nos.L-II/11(114)/416 dated 13.6.2006 on the following terms and conditions:

a) That the said land will be used for operational airport/airport infrastructure/aviation related activities in the MPD 2021 and allow Airports Authority of India/Ministry of Civil Aviation to use the said land for aviation related activities.

b) However, in future, if Airports Authority of India/Ministry of Civil Aviation puts any part to the Safdarjung Airport land to any use other than those relating to aviation as mentioned above, whether by lease to another party or otherwise, then prior approval of Cabinet Committee on Security shall be obtained.

This issues with the approval of Hon‟ble Minister for Urban Development.

Sd/-

(Anand Mohan) Land & Development Officer"

28. The aforesaid executive order clearly indicates that the subject land of the Safdarjung Airport area has been restored to AAI/Ministry of Civil Aviation and, therefore, the contention that the Eviction Officer did not have jurisdiction to pass the impugned order is bereft of any merit. Having stated the above, it is also necessary to observe that even if there is some controversy between two departments of the

Central Government or a statutory authority formed under any Central Act, with regard to a property, the same would not entitle a third party who has no right or interest in the said property to resist the eviction at the instance of either body claiming ownership of the said property; particularly, when the third party does not derive any right or title from either of the two parties. It is not the petitioner‟s case that the Government of India, Ministry of Urban Development has issued any licence in favour of the petitioner for occupying the subject land.

29. It is also relevant to state that by an order dated 26.08.2016, the Ministry of Civil Aviation (respondent no.1) had also directed AAI to take necessary action for resumption of the subject land from the petitioner. Thus, it is not open for the petitioner to contend that its eviction is not as per the approval of a competent authority.

30. The next aspect to be considered is whether there is any vested right with the petitioner for renewal of the licence? Plainly, this question must be answered in the negative. The petitioner was granted a licence for a limited period and although there are several documents/communications that have been referred to for indicating that a proposal to renew the licence was being processed, no right to insist on the same has accrued in favour of the petitioner.

31. Indisputably, the Board of Directors of AAI in their 157 th Meeting held on 18.12.2013 had, resolved as under:

"RESOLVED that the approval of the Board be and is hereby accorded as a special case in view of the direction issued by MoCA vide their letter dated 29.08.2013 for forwarding the proposal to the Ministry

of Civil Aviation for obtaining the approval of the Competent Authority."

However a perusal of the minutes also indicate that the Board of AAI felt that such approval was necessary "as per the latest instructions issued by the Cabinet Secretariat on land allotment/transfer before the allotment is effected."

32. There is no dispute that at the material time, the Board of Directors of AAI had decided to forward the proposal for renewal of the licence in favour of the petitioner at concessional rates and had also sought approval before such allotment could be effected. This, obviously, did not create any vested right with the petitioner as, admittedly, no such renewal was granted. The decision of the Board of Directors of AAI to seek approval from the competent authorities only indicates that at the material time, a proposal to renew the licence in favour of the petitioner was being processed. This proposal did not fructify, as admittedly, licence in favour of the petitioner was not renewed.

33. The Board of Directors of AAI in their 167th Meeting resolved to withdraw the proposal for renewal of the licence for the subject land and to resume the same for the purposes of AAI. The relevant resolution passed by the Board of Directors of AAI reads as under:-

"RESOLVED that the approval of the Board in the 157th Board meeting regarding renewal of allotment of land to ACI @ Rs.1/-P.A. measuring 17400 sq. ft. for a period of another 30 years w.e.f. 19.9.2013 which was referred to MOCA, be reviewed and the same be

withdrawn from MOCA, and the properly be resumed for the purposes of Airports Authority of India."

34. The contention that the said decision is illegal, is without any basis and is flawed. The Board of Directors of AAI were well within their right to review or recall their earlier decision and there is no principle of law (and none has been cited by the petitioner) which would preclude them from doing so. The resolutions passed by the Board of Directors of AAI are matters of their internal management and no right is created in the third parties, merely by virtue of such resolutions or deliberations in such meetings.

35. The contention that the principles of natural justice have been violated as the show cause notice dated 07.09.2016 did not state the ground that the subject land was required by AAI for its own use, is inconsiderable. This is so because learned counsel for the petitioner was pointedly asked as to what is the petitioner‟s objection to AAI‟s decision to resume the subject land for its own purpose, so that the same can be considered in these proceedings. He, however, was unable to advance any argument as to why AAI should be precluded from resuming the subject land for its own purposes. Clearly, the petitioner cannot be permitted to challenge the merits of the decision of the AAI to use the subject land for its own purposes. The learned counsel for the petitioner has sought to suggest that there would be other space available to AAI, which could be used for their offices. However, this Court is unable to accept that the scope of inquiry can be expanded to the extent as suggested. It would not be open for the petitioner to challenge the merits of the decision of AAI to use the

subject land for its own purposes either before the Eviction Officer or in these proceedings. The merits of the decision of AAI are not subject to review. AAI has full authority to take such decisions in respect of usage of its land as it deems fit and it is not open for third parties to contest the same by suggesting that there are other alternatives which they perceive as better ones. This certainly cannot be the scope of examination under Article 226 of the Constitution of India. The Supreme Court in Dwarkadas Marfatia (supra), while explaining the scope of judicial review, observed as under:-

" .......It is not within the purview of a court to substitute a decision taken by a constituted authority simply because the decision sought to be substituted is a better one. Learned Additional Solicitor General, in our opinion, is therefore, right in contending that the appellant should not be allowed to contend that the decision of the Bombay Port Trust to allot the plot to the major holder is not one of the feasible means of achieving the objectives of development. It was not open to the appellant to contend that the Bombay Port Trust could have framed a better policy in a way in which both the goals, development and non-eviction of existing tenants, could have been achieved."

36. The learned counsel for the petitioner had earnestly contended that its licence was not renewed owing to the controversy regarding the licence fee demanded by AAI, which according to the petitioner was illegal and unauthorized. In this regard, it is clarified that this Court has not examined the validity of the demands for licence fee raised by AAI as this Court was informed that separate proceedings have been initiated for recovery of such licence fee. This Court has

confined itself to the question as to whether the decision of the Eviction Officer to evict the petitioner from the subject land is without jurisdiction, arbitrary, unreasonable or otherwise not sustainable.

37. The decisions in the case of M/s Dwarkadas Marfatia (supra) and Neelima Mishra (supra) are of no assistance to the petitioner. There is no dispute to the proposition that a public authority must act fairly even in contractual matters as was explained by the Supreme Court in Dwarkadas Marfatia (supra). However, this Court is unable to accept that the decision of AAI or the Eviction Officer to evict the petitioner - as an unauthorized occupant - from the subject land for the purposes of using the same subject land for their own purposes is either arbitrary, unreasonable or deviates from the obligation of the state authority to act in public interest.

38. The contention that the petitioner has a legitimate expectation to continue to occupy the subject land is without substance. As stated earlier, the licence to use the subject land was for a limited period which has expired. The petitioner has no right whatsoever to continue to occupy the subject land.

39. It is well settled that a petition under Article 226 of the Constitution of India can be maintained only to enforce a legal right. In Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal and Ors.: AIR 1962 SC 1044, Justice K. Subba Rao, speaking for the Constitution Bench of the Supreme Court had observed as under:

"The article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. In

The State of Orissa v. Madan Gopal Rungta:[1952] 1 SCR 28, this Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the court under Article 226 of the Constitution."

40. This Court is unable to accept that the petitioner has any legal right to occupy the subject land. This Court finds no infirmity with the impugned order, holding the petitioner as an unauthorized occupant of the subject land.

41. Accordingly, the petition is dismissed. All pending applications are also disposed of.

VIBHU BAKHRU, J JULY 04, 2017 RK/MK