ADVERTISEMENT
Bombay High Court
M/S Survee Shidal vs Airports Authority Of India on 7 May, 2026
2026:BHC-OS:11830
Neeta Sawant CARBPL-1333 OF 2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL ARBITRATION PETITION (L) NO. 13393 OF 2025
WITH
COMMERCIAL ARBITRATION APPLICATION (L) No. 38289 OF 2025
Survee Shidal ...Petitioner/Applicant
V/s.
Airports Authority of India ...Respondent
WITH
COMMERCIAL ARBITRATION PETITION (L) NO. 12378 OF 2025
Survee Foods Private Limited ...Petitioner
V/s.
Airport Authority of India ...Respondent
_____________
Mr. Karl Tamboly with Mr. Kevin Pereira i/b Mr. Viraj Jadhav for the
Petitioner in CARBPL/13393/2025 and for the Applicant in
CARAPL/38289/2025.
Mr. Rahul Pandey i/b. Ms. Pramila L. Prajapati for the Petitioner in
CARBPL/12378/2025.
Mr. Pravin Samdani, Senior Advocate with Ms. Shilpa Kapil, Mr.
Chidanand Kapil, Mr. Darshit Jain Ms. Aishwarya Mall and
Ms.Vishwabharati Devkhile for the Respondent.
________________
CORAM: SANDEEP V. MARNE, J.
Reserved On: 24 APRIL 2026.
Pronounced On: 7 May 2026.
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Judgment:
1) The issue involved in the Petitions is about arbitrability of disputes
concerning termination of licenses to occupy airport premises by the
Airports Authority of India.
2) There are two Petitioners before this Court-Survee Shidal and
Survee Foods Private Limited, who are aggrieved by termination notices
issued by the Airports Authority of India (AAI) on 22 March 2025
terminating the agreements granting licenses for running Restaurants
cum Hangout formats at Juhu Airport. They have accordingly filed
Petitions under Section 9 of the Arbitration and Conciliation Act, 1996
(Arbitration Act) seeking interim measures in the form of stay on
termination notice dated 22 March 2025 and for allowing them to
continue operations of Restaurant-cum-Hangout format as per the
Agreement executed in their favour.
3) M/s. Survee Shidal has also filed Commercial Arbitration
Application (L) No.38289 of 2025 under Section 11 of the Arbitration Act,
for appointment of the arbitrator. Since the Respondent/AAI has raised
objection about arbitrability of the disputes relating to termination of
license and eviction from Airport premises, all the three proceedings are
taken up for analogous hearing.
FACTS
4) Briefly stated, facts of the case are that AAI issued Notice
Inviting Tender for operation of restaurant-cum-hangout format in
premises admeasuring 150 sq. mtrs. and 630 sq. mtrs at Juhu Airport
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located at Juhu Airport, Vile Parle (W) Mumbai. Petitioners submitted
their bids in pursuance of the Notice Inviting Tender. The bids of the
Petitioners were accepted and AAI issued Letters of Intent to Award
(LOIA) in favour of the Petitioners. LOIA dated 1 March 2024 was issued
in favour of the Petitioner-M/s. Survee Shidal in respect of the premises
admeasuring 630 sq. mtrs for a period of 7 years. AAI granted LOIA dated
13 February 2024 in favour of Petitioner-Survee Foods Private Limited in
respect of the premises admeasuring 150 sq.mtrs for a period of 7 years.
In pursuance of the LOIA, parties executed Concession
Agreements/License Agreements dated 21 February 2024 and 15 March
2024 under which Petitioners were granted licenses for a period of 7
years after completion of gestation period of 60 days or from
commencement of operations, whichever was earlier. Petitioners paid
amount of security deposit to the AAI. Both the Petitioners were put in
physical possession of the licensed areas admeasuring 630 sq.mtrs and
150 sq.mtrs. The Petitioners thereafter started construction and fit out
work in the premises. While the construction work was in progress,
Municipal Corporation of Greater Mumbai (MCGM) issued notices under
Section 354A of the Mumbai Municipal Corporation Act, 1888 (MMC
Act) alleging unauthorised construction. Petitioner replied to the
notices. The MCGM thereafter issued stop work notices to the Petitioners
on 10 January 2025. Petitioners filed L.C. Suit No.123 of 2025 before the
City Civil Court, which are pending and in which interim injunction is
granted restraining the MCGM from taking steps in respect of the
construction.
5) On 22 March 2025, AAI issued notices terminating the
Concession Agreement contending inter alia that officer executing the
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contract was not empowered to allot the land. It was further alleged that
the structure is constructed by the Petitioners inside the boundary wall
by trespassing into prohibited area and by encroaching upon the larger
land than the one which was allotted. The Petitioners are aggrieved by
Termination Notice dated 22 March 2025 and have accordingly filed
Section 9 Petitions seeking interim measures. By order dated 23 June
2025, this Court directed maintenance of status-quo, which protection
continues to operate till date.
6) In the meantime, M/s. Survee Shidal has filed Commercial
Arbitration Application (L) No.38289 of 2025 under Section 11 of the
Arbitration Act for appointment of an Arbitrator. The Respondent-AAI
has appeared in the Petitions and filed affidavit-in-reply denying
existence of arbitration agreement for adjudication of disputes involved
in the Petition. The AAI has relied upon provisions of Chapter-VA of the
Airports Authority of India Act, 1994 (AAI Act) and has produced copies
of eviction notices dated 11 June 2025 issued by the Eviction Officer.
Accordingly, submissions canvassed by the learned counsel appearing for
rival parties on the issues of permissibility to make reference to
arbitration as well as entitlement of Petitioners for interim measures, are
heard.
7) Mr. Tamboly, the learned counsel appearing for the
Petitioner-M/s. Survee Shidal has contended that there exists a valid and
bindings arbitration agreement between the parties. That the dispute
resolution clause in the Concession Agreements (Clause No.25.6)
provides for adjudication of unresolved disputes by arbitration. That the
arbitration clause covers disputes arising out of and in connection with
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the Concession Agreement, which necessarily includes the disputes
concerning alleged breach, termination, monetary claims, damages and
consequential reliefs. He submits that the Respondent itself had earlier
consented for arbitration and its subsequent refusal is an afterthought
and cannot defeat contractual obligation to arbitrate. He relies upon
order dated 23 June 2025 in Section 9 Petitions in support of his
contention that the validity of termination is an arbitrable dispute.
8) Mr. Tamboly further submits that objections based on
Chapter-VA of AAI Act raises, at the highest, a mixed question of fact and
law viz., whether the dispute is purely one of unauthorised occupation or
whether it arises out of a broader commercial contract and the legality of
its termination. Such determination is not straightaway and cannot be
conclusively decided by the reference Court. He submits that issue is not
ex-facie barred and therefore needs to be left open for decision by the
Arbitral Tribunal for determination under Section 16 of the Arbitration
Act. That the Tribunal is competent to rule on its own jurisdiction
including all objections with regard to existence or validity of arbitration
agreement. That the scope of enquiry under Section 11 of the Arbitration
Act is confined to prima facie existence of arbitration agreement and the
Court is not required to conduct a mini trial for determining arbitrability
except in cases where non-arbitrability is manifest and ex-facie. He
submits that in respect of Agreement executed between the Petitioner
and sub-licensee, this Court has appointed Arbitrator vide order dated 10
April 2026. That the Agreement of sub-licensee was executed in
furtherance and in lieu of Concession Agreement, which is under
adjudication in the present proceedings. That since disputes arising out
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of derivative agreement are referred to arbitration, the disputes arising
out of Concession Agreement cannot be held to be non-arbitrable.
9) Mr. Tamboly further submits that the excepted matters must
be strictly construed and relies on judgments of the Apex Court in Food
Corporation of India Versus. Shreekanth Transport 1 and State of Goa
Versus. Praveen Enterprises2. In support of his contention that issue
relating to arbitrability should ordinarily be left open to Arbitral Tribunal
Mr. Tamboly relies on judgments in Office for Alternative Architecture
Versus. Ircon Infrastructure and Servises Ltd.3 and SBI General
Insurance Company Limited Versus. Krish Spinning 4. In support of his
contention that disputes concerning breach, delay and validity of
termination are arbitrable unless expressly excluded, Mr. Tamboly relies
on judgments of the Apex Court in J.G. Engineers Private Ltd. Versus.
Union of India and another5 and Bharat Sanchar Nigam Limited and
another Versus. Motorola India Private Ltd.6 and of Delhi High Court in
India Trade Promotion Organisation Versus. International Amusement
Limited7. In support of his contention that earlier orders passed in same
proceedings cannot be lightly ignored, Mr. Tamboly relies on judgment
of the Apex Court in Arjun Singh Versus. Mohindra Kumar and others8.
On the above broad submissions, Mr. Tamboly prays for constitution of
Arbitral Tribunal and for continuation of ad-interim measures already
made during pendency of the arbitral proceedings.
1
1999 (4) SCC 491
2
2012 (12) SCC 581
3
2025 SCC Online SC 1908
4
2024 12 SCC 1
5
2011 5 SCC 758
6
2009 2 SCC 337
7
2007 SCC Online Del 981
8
AIR 1964 SC 993
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10) Mr. Pandey, the learned counsel appearing for the
Petitioner-M/s. Survee Foods Pvt. Ltd. adopts submissions of Mr.
Tamboly.
11) Mr. Samdani, the learned senior advocate appearing for the
Respondent-AAI opposes the Petitions under Section 9 and Application
under Section 11 submitting that the licenses relate to Airport premises
which property belongs to AAI. That Petitioners are in unauthorised
occupation of Airport Premises within the meaning of Section 28-A(f) of
the AAI Act on account of termination of their licenses. That clauses 25.1
and 25.10 of the License Agreements expressly exclude the disputes and
differences, which are covered by Chapter-VA of the AAI Act. That
therefore excepted matters cannot be referred to arbitration and Arbitral
Tribunal would have no jurisdiction in respect thereof. In support, he
relies on judgment in Prabartak Commercial Corporation Ltd. Versus.
Chief Administrator, Dandakaranya Project and another 9.
12) Mr. Samdani further submits that in view of clauses 25.1 and
25.10 of the License Agreements and provisions of Chapter-VA of the AAI
Act r/w. Section 2(3) of the Arbitration Act, the dispute pertaining to
termination, validity of termination, recovery of possession or arrears
and damages are to be dealt with exclusively by the Eviction Officer
appointed under Section 28-B of the AAI Act. That this principle is
applied by this Court in HLV Limited Versus. Airports Authority of
India 10. That in HLV Limited (supra) this Court has held that disputes
relating to eviction from Airport Premises are non-arbitrable and the
same fall within the exclusive jurisdiction of the Eviction Officer. He
9
1991 1 SCC 498.
10
Arbitration Appeal No.83 of 2024 decided on 9 June 2025.
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submits that the judgment in HLV Limited is upheld by the Apex Court
by dismissal of Special Leave Petition vide order dated 21 July 2025. He
also relies on judgment of the Delhi High Court in Airport Authority of
India Versus. M/s. Grover International Ltd. And another11 in support of
the contention that similar view is taken in relation to application of
provisions of Public Premises (Eviction of Unauthorised Occupants) Act,
1971 (PP Act) to airport premises. Mr. Samdani also relies upon
judgment of this Court in Airports Authority of India Versus. Satyavan
Vishnu Agate 12
in support of his contention that this Court has upheld
non-arbitrability of disputes and differences covered by Chapter-VA of
the AAI Act.
13) Mr. Samdani further submits that reading of Sections in
Chapter-VA of the AAI Act as a whole, makes it clear that the said Act
constitutes a complete code, governing matters relating to unauthorised
occupation and eviction of Airport premises. That the said Chapter
confers upon the Eviction Officer powers of a Civil Court in certain
matters including the power of summoning and examining witnesses
and receiving evidence. That there is statutory appeal to the High Court
and the orders passed by the Eviction Officer under Section 28-A of the
AAI Act are treated as final thereby excluding the jurisdiction of Civil
Court in respect of actions taken or to be taken under the said Chapter.
He relies on judgment of the Apex Court in Dhulabhai Versus. State of
Madya Pradesh and others 13
in support of his contention that
jurisdiction of Civil Court is impliedly barred.
11
2011 SCC Online Del 446
12
Review Petition (L) No.18565 of 2025 decided on 16 April 2026
13
1968 SCC Online SC 40
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14) Mr. Samdani further submits that only those claims, which
are dehors the termination, recovery of possession and arrears, which
cannot be adjudicated by Eviction Officer, can be referred to arbitration
and only after the order of the Eviction Officer. In support, he relies on
judgment of Delhi High Court in Turkinz Versus. India Tourism
Development Corporation Limited and another . 14
15) Mr. Samdani relies on judgment in Booz Allen and
Hamilton INC Versus.. SBI Homes Finance Limited and others 15
in
support of his submission that adjudication of certain category of
proceedings are reserved by the legislature exclusively for public fora, as
a matter of public policy and jurisdiction of Arbitral Tribunals is
accordingly excluded either expressly or by necessary implication. He
relies on judgment of the Apex Court in Vidya Drolia and others Versus.
Durga Trading Corporation 16
in support of the contention that
legislature is empowered to exclusively reserve certain category of
proceedings for public fora. On above broad submissions, Mr. Samdani
prays for dismissal of the Petitions.
REASONS AND ANALYSIS
16) The core issue that arises for consideration in the two
Petitions filed under Section 9 and the Application filed under Section 11
of the Arbitration Act is whether disputes relating to termination of
license of the Petitioners and relating to their eviction are arbitrable and
14
Arbitration Petition No.518 of 2015 decided on 20 October 2015
15
2011 5 SCC 532
16
2021 2 SCC 1
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whether reference to arbitration can be made by this Court while
exercising referral jurisdiction under Section 11(6) of the Arbitration Act.
17) As observed above, Petitioners are granted license for
running Restaurant-cum-Hangout format by the AAI on land belonging
to it at Juhu Airport. The land on which licenses were granted to operate
restaurants abuts Swami Vivekananda Road and the restaurants, though
constructed on AAI land, are meant to cater to members of public as
well. The licenses are secured by the Petitioners by participating in the
tender process. The Officer holding the post of Airport Director of AAI
apparently took a decision to grant licenses in respect of the AAI land for
operating the restaurants. After being successful in the biding process,
the Petitioners were issued LOIA in respect of lands admeasuring 150 sq.
mtrs. and 630 sq. mtrs for operation of restaurants-cum-hangout
formats. The LOIA set out the terms and conditions of grant of license.
After payment of initial amount stipulated in LOIA, AAI executed
License Agreements, which are also described as Concession Agreements,
with the Petitioners. Under the Agreements, licenses for a period of 7
years are granted to Petitioners for running of restaurants at the
designated lands on payment of stipulated license fees. The General
Terms and Conditions are appended to the license agreements, which
contain arbitration agreement in Clause 25 as under :
(25) Dispute Resolution
25.1 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 or which may here-after come into forte are
applicable) (the "Dispute") shall be dealt as under:
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25.2 Through Mediation: All dispute(s), at the first instance, shall be
referred to the "Mediation Committee of Independent Experts (MCIE)
or individual mediator for mediation as per "AAI Mediation Policy and
applicable laws. All cost of mediation shall be borne equally by the
parties.
25.3 In case either party withdraws from the Mediation or the
dispute(s) is nut resolved within 120 days of reference to the Mediation,
then the aggrieved party may invoke arbitration through Clause 28.5
within 30 days from the date of receipt of Partial Settlement Agreement
or Failure Report.
25.4 Unless the contract has already been repudiated or terminated, the
parties shall, in every case, continue to proceed to perform their
respective obligations under the agreement. Once the request of the
Party is accepted under Mediation Policy of AAI, the dues of the party
shall be treated as disputed for all purposes.
25.5 Adjudication through Arbitration: In case no final settlement has
been arrived at between the parties after mediation or partially settled
as per sub Para
25.6 above, the unresolved dispute(s), on invocation by the aggrieved
party shall be referred for adjudication by arbitration.
a. When the amount involved is above 25 crores, adjudication shall be
made by Arbitral Tribunal comprising of 03 arbitrators. Each party to
appoint one arbitrator and the two appointed arbitrators shall appoint
the Presiding Arbitrator.
b. When the amount involved is Rs. 25 Crores and below shall be
referred to a Sole Arbitrator to be appointed by the Authority, AAl, after
obtaining consent of the other party, as per format annexed at
Annexure M.
25.7 Unless the contract has already been repudiated or terminated, the
parties shall, in every case, continue to proceed to perform their
respective obligations under the agreement.
25.8 Arbitration proceedings shall be conducted in accordance with the
provisions of the Arbitration and Conciliation Act, 1996, as amended
from time to time.
25.9 Fee payable to the Arbitrator(s) shall be as per Schedule-IV of the
Arbitration & Concillation Act, 1996 and shall be borne by both the
parties equally.
25.10 No dispute shall be referred for resolution under this clause
through arbitration in matters for which eviction & recovery
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procedure is provided under Chapter -VA of the Airports Authority
of India Act, 1994 as amended by Act 2003.
25.11 The venue of such arbitration shall be Juhu Airport and the
language of arbitration proceedings shall be English.
25.12 Adjudication by Regulatory Authority or Commission
25.12.1. In the event of constitution of a statutory Regulatory Authority
or Commission with powers to adjudicate upon disputes between the
Concessionaire and the Authority, all disputes arising after such
constitution shall, instead of reference to adjudication under this
Clause/above clauses, be adjudicated upon by such Regulatory
Authority or Commission in accordance with the Applicable Laws and
all references to Dispute Resolution Procedure shall be construed
accordingly. For the avoidance of doubt, the parties hereto agree that
the adjudication hereunder shall not be final and binding until an
appeal against such adjudication has been decided by an appellate
tribunal or judicial court, as the case may be, or no such appeal has
been preferred within the time specified in the Applicable Laws
The case shall be referred to the sole Arbitrator by the
Chairman/Member/ RED of the Authority, subject to the condition that
the licensee shall have to deposit 50% of the disputed amount (in the
form of BG (Additional bank guarantee with validity of minimum two
years from the date of making reference to Arbitration and further
extendable) RTGS/ NEFT) with AAl as condition precedent before
making reference to the Arbitration for adjudication of dispute.
During the arbitral and Dispute resolution under Mediation
proceedings, the licensee(s) shall continue to pay the full amount of
license fee/dues regularly as per the award/agreement and perform all
covenants of the agreements.
'(emphasis supplied)
18) Thus, under Clause 25, though 'all the disputes and
differences' arising out of, touching or concerning the license agreement
could be first referred to Mediation Committee of Independent Experts
and could thereafter be referred to arbitration, clause 25.1 excludes
certain types of disputes and differences from the ambit of arbitration
agreement. The excluded disputes and differences relate to the decision
to which provision of AAI Act and the rules framed thereunder apply.
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Thus, on strict interpretation of Clause 25.1, the decision to which
provisions of AAI Act apply, are not covered by the expression 'dispute'
which can be dealt with under clauses 25.2 onwards. If there is any
ambiguity in the language used on clause 25.1, the clarity is achieved in
clause 25.10, which makes it expressly clear that no dispute shall be
referred for resolution through arbitration in maters for which eviction
and recovery procedure is provided in Chapter-VA of the AAI Act, as
amended by the Act of 2003.
19) Since Clause 25.10 seeks to exclude the disputes in relation
to eviction and recovery proceedings provided under Chapter-VA of the
AAI Act, it would be necessary to refer to the provisions under Chapter-
VA of the Act. Chapter-VA has been inserted in the AAI Act by the Act 43
of 2003 w.e.f 1 July 2004. Chapter-VA makes provisions for eviction of
unauthorised occupants in the airport premises. Sections 28-A to 28-R
are inserted in the AAI Act by the 2003 amendment. Section 28-A defines
various terms and for the purpose of present controversy, it would be
necessary to refer to the definition of the terms 'airport premises' and
'unauthorized occupation' in clauses (a) and (f) of Section 28-A and
which provides thus:
28-A. 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.
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Explanation.--For the removal of doubts, it is hereby declared that for
the purposes of this clause, "airport" includes private airport;
(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.
20) Section 28-B provides for appointment of Eviction Officers
for the purpose of exercise of powers conferred and for performance of
duties imposed under Chapter-VA. Under Section 28-C, if the eviction
officer is of the opinion that if persons are in unauthorized occupation of
any airport premises and that they should be evicted, a notice can be
issued in writing calling upon such persons to show cause why an order
of eviction should not be made. Section 28-C of the AAI Act provides
thus:
28-C. Issue of notice to show cause against order of eviction.--
(1) If the eviction officer is of the opinion that any persons are in
unauthorised occupation of any airport premises and that they should
be evicted, the eviction officer shall, in the manner hereinafter
provided, issue a notice in writing calling upon all persons concerned to
show cause why an order of eviction should not be made.
(2) The notice shall--
(a) specify the grounds on which the order of eviction is
proposed to be made; and
(b) require all persons concerned, that is to say, all persons who
are or may be, in occupation of, or claim interest in, the airport
premises--
(i) to show cause, if any, against the proposed order on or before
such date as is specified in the notice, being a date not earlier
than seven days from the date of issue thereof, and
(ii) to appear before the eviction officer on the date specified in
the notice along with the evidence which they intend to produce
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in support of the cause shown and also for personal hearing, if
such hearing is desired.
(3) The eviction officer shall cause the notice to be served by having it
affixed on the outer door or some other conspicuous part of the airport
premises and in such other manner as may be prescribed, whereupon
the notice shall be deemed to have been duly given to the persons
concerned.
(4) Where the eviction officer knows or has reasons to believe that any
person is in occupation of the airport premises, then, without prejudice
to the provisions of sub-section (3), he shall cause a copy of the notice
to be served on every such person by post or by delivering or tendering
it to that person or in such other manner as may be prescribed.
21) Under Section 28-D, the Eviction Officer can make an order
of eviction upon reaching a satisfaction that the airport premises are in
unauthorised occupation. Under Section 28-D(2), if a person against
whom eviction order is made, refuses or fails to comply with the order of
eviction, the Eviction Officer can evict such person and take possession
of the airport premises by use of such force as may be necessary. Section
28-D provides thus:
28-D. Eviction of unauthorised occupants.--
(1) If, after considering the cause, if any, shown by any person in
pursuance of a notice under section 28C and any evidence produced by
him in support of the same and after personal hearing, if any, given
under sub-clause (ii) of clause (b) of sub-section (2) of section 28C, the
eviction officer is satisfied that the airport premises are in unauthorised
occupation, the eviction officer may make an order of eviction, for
reasons to be recorded therein, directing that the airport premises shall
be vacated, on such date as may be specified in the order, by the persons
who may be in occupation thereof, and cause a copy of the order to be
affixed on the outer door or some other conspicuous part of the airport
premises.
(2) If any person refuses or fails to comply with the order of eviction on
or before the date specified in the order or within fifteen days of the
date of publication under sub-section (1), whichever is earlier, the
eviction officer or any other officer duly authorised by the eviction
officer in this behalf may, after the date so specified or after the expiry
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of the period aforesaid, whichever is earlier, evict that person from, and
take possession of, the airport premises and may, for that purpose, use
such force as may be necessary.
22) Under Section 28-G, the Eviction Officer is empowered to
regulate payment of rent or damages in respect of the airport premises.
Under Section 28-H, the eviction officer has same powers as vested in a
Civil Court under Code of Civil Procedure, 1908 in respect of various
matters. Section 28-H provides thus:
28-H. Powers of eviction officers.
An eviction officer shall, for the purpose of holding any inquiry into this
Chapter, have the same powers, as are vested in a civil court under the
Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect
of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and
examining him on oath;
(b) requiring the discovery and production of documents;
(c) any other matter which may be prescribed.
23) Under Section 28-K, a person aggrieved by the order of
Eviction Officer can prefer an appeal to the High Court. Section 28-K
provides thus:
28-K. Appeals to Tribunal.--
(1) Any person aggrieved by an order of the eviction officer under this
Chapter may, within fifteen days from the date of such order, prefer an
appeal to the [High Court]:
Provided that the 1 [High Court] may entertain any appeal after the
expiry of the said period of fifteen days, but not after the period of
thirty days from the date aforesaid, if it is satisfied that the appellant
was prevented by sufficient cause from filing the appeal in time.
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24) Section 28-M provides for finality to the order made by
Eviction Officer which cannot be called in question in a suit, application
or execution or other proceedings. Section 28-M also debars a Court from
granting any injunction in respect of any action taken or intended to be
taken in pursuance of powers conferred on Eviction Officer under
Chapter-VA. Section 28-M of the AAI Act provides thus:
28-M. 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.
25) Thus, Chapter-VA is a complete code in matters relating to
'unauthorized occupation' of any airport premises. Under definition of
the term 'unauthorized occupation' in Section 28-A, even occupation
without authority or continuation in occupation after expiry or
determination of authority, becomes unauthorized occupation.
26) Since Chapter-VA provides for a complete code relating to
matters of eviction from airport premises and in relation to recovery of
airport premises, Clause 25.1 and Clause 25.10 exclude the disputes
relating to eviction and recovery procedure governed by Chapter-VA of
the AAI Act from the purview of arbitration. These disputes relating to
eviction and recovery procedure are 'excepted maters' and cannot be
referred to arbitration as per the agreement between the parties. It is
well settled position that in respect of excepted maters, arbitrator has no
jurisdiction and reference of dispute to the arbitration, if made, becomes
invalid rendering the entire proceeding before the arbitrator, including
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the award, null and void. This position is well settled by judgment of the
Apex Court in Prabartak Commercial Corporation Ltd. (supra) in which
it has held in paras-2 to 5 as under:
2. The dispute between the parties was referred by the court in terms of
Section 20 of the Arbitration Act, 1940. The reference was made,
notwithstanding the objections on the part of the respondents. The
respondents contended that the matter in dispute was outside the
scope of the arbitration clause. That objection was rejected by the
learned Additional District Judge. An advocate was appointed as an
arbitrator. The arbitrator entered upon the reference and submitted
awards on December 16, 1968 and on September 30, 1969. A preliminary
decree was directed to be drawn up despite the objections filed by the
respondents under Section 33 of the Act.
3. In an appeal filed in the High Court under Section 39(1)(vi), the
respondents contended that the dispute regarding rates came within
the ambit of Clause 13-A of the agreement and that clause provided "in
the event of a dispute the decision of the Superintending Engineer of
the circle shall be final". The respondents pointed out that the
arbitration agreement was contained in Clause 14 and that clause
specifically excluded any dispute arising under Clause 13-A. Disputed
rates were matters which came within the ambit of Clause 13-A. Such
disputes were not covered by the arbitration agreement. The awards
were, therefore, made without jurisdiction and were void.
4. The learned Judge of the High Court held that Clause 14 containing
the arbitration agreement had no application to the dispute in question
which fell under Clause 13-A and, therefore, the arbitrator had no
jurisdiction in the matter. He held that the reference of the dispute to
the arbitrator was invalid and the entire proceedings before the
arbitrator including the awards made by him were null and void.
5. We are in complete agreement with the reasoning of the learned
Judge. The appeal is accordingly dismissed with costs throughout.
27) Section 2(3) of the Arbitration Act provides that Part-I of the
Act cannot affect any other law by virtue of which certain disputes may
not be submitted to arbitration. Section 2(3) of the Arbitration Act
provides thus :
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(3) This Part shall not affect any other law for the time being in force by
virtue of which certain disputes may not be submitted to arbitration.
28) Thus, it is lawful for the legislature to statutorily prescribe
that certain disputes cannot be resolved through arbitration. This
principle is settled in the judgments of the Apex Court in Booz Allen and
Hamilton INC (supra) and Vidya Drolia (supra). In Booz Allen and
Hamilton INC, the Apex Court has held in paras-35 and 36 as under:
35. The Arbitral Tribunals are private fora chosen voluntarily by the
parties to the dispute, to adjudicate their disputes in place of courts and
tribunals which are public fora constituted under the laws of the
country. Every civil or commercial dispute, either contractual or non-
contractual, which can be decided by a court, is in principle capable of
being adjudicated and resolved by arbitration unless the jurisdiction of
the Arbitral Tribunals is excluded either expressly or by necessary
implication. Adjudication of certain categories of proceedings are
reserved by the legislature exclusively for public fora as a matter of
public policy. Certain other categories of cases, though not expressly
reserved for adjudication by public fora (courts and tribunals), may by
necessary implication stand excluded from the purview of private fora.
Consequently, where the cause/dispute is inarbitrable, the court where
a suit is pending, will refuse to refer the parties to arbitration, under
Section 8 of the Act, even if the parties might have agreed upon
arbitration as the forum for settlement of such disputes.
36. The well-recognised examples of non-arbitrable disputes are: (i)
disputes relating to rights and liabilities which give rise to or arise out
of criminal offences; (ii) matrimonial disputes relating to divorce,
judicial separation, restitution of conjugal rights, child custody; (iii)
guardianship matters; (iv) insolvency and winding-up matters; (v)
testamentary matters (grant of probate, letters of administration and
succession certificate); and (vi) eviction or tenancy matters governed by
special statutes where the tenant enjoys statutory protection against
eviction and only the specified courts are conferred jurisdiction to grant
eviction or decide the disputes.
29) Thus, exclusion of jurisdiction of the Arbitral Tribunal by the
legislature and resolution of such disputes only by public fora is a matter
of public policy. In Vidya Drolia the Apex Court has reiterated the
principle and has held in para-35 as under:
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35. Booz Allen & Hamilton Inc. states that civil or commercial dispute,
whether contractual or non-contractual, which can be decided by a
court, is in principle capable of being adjudicated and resolved by an
Arbitral Tribunal unless the jurisdiction of the Arbitral Tribunal is
either expressly or by necessary implication excluded. Legislature is
entitled to exclusively reserve certain category of proceedings for public
forums, be it a court or a forum created or empowered by the State to
the exclusion of private forum. Exclusion of the jurisdiction of the
Arbitral Tribunal are matters of public policy. When public policy
mandates and states that a case or a dispute is non-arbitrable, the court
would not allow an application under Section 8 (or even Section 11 as
observed supra) even if the parties have agreed upon arbitration as the
mechanism for settlement of such disputes.
30) In the present case, Chapter-VA provides for a complete code
for matters relating to eviction and recovery of possession of the airport
premises. Section 28-M of the AAI Act bars the jurisdiction of a Court or
authority in respect of any action taken or even an action which is
intended to be taken in pursuance of power conferred by or under
Chapter-VA. Thus, in relation to any action taken or intended to be taken
in exercise of powers conferred under Chapter-VA, the arbitrator cannot
exercise jurisdiction. There is a statutory bar on resolution of disputes
relating to eviction and recovery of airport premises under Section 28-M
of the AAI Act. Such statutory bar prescribed by the legislature is a
matter of public policy and has been held by the Apex Court in Booz
Allen and Hamilton INC and Vidya Drolia. The legislature can impose
such statutory bar. Therefore, the provisions of Section 28-M of the AAI
Act, coupled with provisions of Section 2(3) of the Arbitration Act, would
clearly make disputes relating to actions taken or intended to be taken
by Eviction Officer, in exercise of any power conferred by or under
Chapter-VA, non-arbitrable.
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31) Applying the settled principles in Constitution Bench
decision in Dhulabhai (supra) jurisdiction of Civil Court, as well as of
arbitrator, is otherwise impliedly barred in view of provisions of Section
28-M of the AAI Act.
32) Apart from statutory bar imposed under Section 28-M on
arbitrability of disputes relating to eviction and recovery of airport
premises in relation to action taken or intended to be taken by Eviction
Officer in exercise of powers under Chapter-VA, Clauses 25.1 and 25.10 of
the license agreement once again explicitly make it clear that no
disputes relating to eviction or recovery procedure governed by provision
of Chapter-VA can be resolved through arbitration. In my view therefore
resolution of disputes relating to eviction of the Petitioners cannot be
resolved through arbitration, both on account of statutory bar under the
provisions of Section 28-M of AAI Act, when read in conjunction with
provisions of Section 2(3) of the Arbitration Act as well as on account of
specific covenants of Clauses 25.1 and 25.10 of the license agreement.
33) In the present case, the licenses of the Petitioners have been
terminated by notices/orders dated 22 March 2025. Thus, the authority
to occupy airport premises has been terminated and has expired w.e.f. 22
March 2025. This is clear from following directions in notices dated 22
March 2025:
Now therefore, in exercise of the powers conferred upon Airport
Director, Juhu Airport (Accepting Authority), your Agreement dated
21/02/2024 is hereby terminated, with immediate effect and you are
also directed to hand over the peaceful possession of the site to AAI
henceforth as was handed over to you on 29/02/2024 as per Schedule of
premises.
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34) Since authority to occupy airport premises is terminated
with issuance of termination notice dated 22 March 2025, Petitioners
have automatically become unauthorised occupants of the airport
premises within the meaning of Section 28-A(a) and (f) of the AAI Act.
Thus, immediately upon issuance of termination notices dated 22 March
2025, Petitioners became liable for being evicted under the provisions of
Sections 28-C and 28-D of the AAI Act. The Eviction Officer has
expressed the intention to take action in pursuance of powers conferred
upon him under Section 28-C and 28-D of the AAI Act upon issuance of
termination notice dated 22 March 2025. The eviction action has indeed
been initiated by issuance of notice under Section 28-C and 28-F of the
AAI Act by the Enquiry Officer on 11 June 2025. Thus, under the
provisions of Section 28-M of the AAI Act, any dispute relating to
occupation of airport premises by the Petitioners has become non-
arbitrable. Even otherwise, Clauses 25.1 and 25.10 of license agreement
specifically renders disputes relating to eviction and recovery procedure
non-arbitrable.
35) The issue of dispute relating to eviction and recovery of dues
in respect of airport premises not being arbitrable is settled by the
judgment of Single Judge of this Court in HLV Limited. In that case, the
applicant therein had executed lease deed in respect of the land owned
by AAI in the year 1983 and the tenure of the lease was for a period of 30
years. Another lease was executed in the year 1996 for separate parcel of
land and the tenure was up to the year 2024. There was arbitration clause
in each of the lease deeds providing for resolution of all disputes and
differences arising from, or any in way touching or concerning the lease
deeds through arbitration. However, arbitration clause in the lease deeds
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explicitly excluded from arbitration any facet to which the provisions of
PP Act applied. AAI sought to evict the Applicant in the year 2017.
Chapter-VA was inserted in the AAI Act, and the leased lands became
'airport premises' within the meaning of Chapter-VA of the AAI Act. The
Eviction Officer initiated proceedings under Chapter-VA in which the
Applicant therein filed application under Section 8 of the Arbitration Act
on the ground that the disputes between the parties are governed by the
arbitration clause. Section 8 applications were dismissed by the Eviction
Officer and the Applicant filed appeal under Section 37 of the Arbitration
Act r/w Section 28-K of the AAI Act. In the light of the above factual
position, the issue before this Court in HLV Limited was whether the
disputes and differences relating to eviction and recovery of dues under
the lease deeds fell within the scope of arbitration in the light of
exclusions contained in arbitration clause. The issue is captured in para-
22 of the judgment as under:
22. As stated at the threshold, regardless of the web of pleadings and
proceedings involved, the core issue that falls for consideration in these
proceedings is whether the proceedings for eviction and recovery of
lease rentals fall within the scope of the arbitration agreement between
the parties.
36) The issue is answered by this Court by holding in paras-45 to
49 as under:
45. When the AAI Act was amended in 2003 to include Chapter VA
under which AAI is now proceeding to effect eviction from the leased
land, Leela contends that the parties never chose to amend the lease
deeds to replace references to the Public Premises Eviction Act with
references to the AAI Act. The AAI Act also does not repeal the Public
Premises Eviction Act insofar as it relates to airport premises. So also,
Leela contends, the AAI Act does not have a provision of ouster of
jurisdiction of other courts in the manner of the effect of the Public
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Premises Eviction Act. Consequently, the contention is that eviction
under AAI Act is not covered by the exclusion from arbitration.
46. In my opinion, these contentions attempt to raise abstruse points
which can at best be argued on merits in the final hearing of the
eviction proceedings. They have no relevance to whether the Eviction
Officer under the AAI Act has jurisdiction as a matter of law, and
whether eviction is at all arbitrable.
47. The proceedings adopted by AAI are under the statutory provisions
available under the AAI Act. The reference to the Public Premises
Eviction Act in the lease deeds, both in the deeming position contracted
by the parties and in the provision of exclusion from the arbitration,
enables identification of the leased land as public premises in the
context of eviction proceedings. The effect of these provisions is that
eviction from the leased land stands excluded from the arbitration
agreement. Once it is clear that eviction is excluded from arbitrability,
in my opinion, it does not matter which other provision or forum is
available in law to enable eviction. So long as eviction is not covered by
arbitration, the availability of a new provision of law that came into
force after the execution of the lease deeds for effecting eviction,
cannot become unavailable to AAI to pursue eviction. The reference in
the lease deeds is to the Public Premises Eviction Act with the objective
of excluding eviction from the scope of arbitration. At that stage, it was
not possible to have envisaged to refer to Chapter VA of the AAI Act,
since it did not exist. What the provisions clearly point to is that the
parties intended to exclude eviction from the leased land from
arbitration.
48. Towards this end, Mr. Kumbhakoni is precisely right in submitting
that to discern the contracting intent of the parties when interpreting
the contract, regard must be had to the position in fact and in law as
prevailing at the time of execution of contract. By choosing the
reference to the Public Premises Eviction Act, what the parties achieved
in the lease deeds is the recording of what is not arbitrable. That is all
that matters for purposes of dealing with the Section 8 Applications.
Merely because the parties chose to exclude eviction and related
recoveries from arbitrability by reference to the Public Premises
Eviction Act, it would not follow that the AAI is estopped from utilising
other powers specially made available in the AAI Act to effect eviction.
Such a reading is absurd to say the least. When the objective of the
contract is achieved - to exclude eviction from arbitration, it would not
mean that the exclusion from arbitration would present a legal
handicap to AAI, forcing it not to avail of special powers conferred by
Parliament to achieve the same objective.
49. Therefore, whether it is the Public Premises Eviction Act or the AAI
Act that is the correct legislation for AAI to utilise, is a question that is
not relevant to the accuracy of the decision under Section 8 of the
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Arbitration Act. Once it is clear that eviction is not amenable to
arbitration, any appropriate forum - any other than an arbitral tribunal
- would be available for eviction. For the reasons set out above, in my
opinion, the arbitration agreement is not in existence insofar as it
relates to eviction and related recoveries. Therefore, the scope of
eviction and related recoveries being outside the scope of arbitration,
no fault can be found with either the AAI or with the Impugned Orders
on the premise that it was the AAI Act that was invoked and not the
Public Premises Eviction Act
37) In HLV Limited, this Court has highlighted the objective and
purpose of inserting Chapter-VA in the AAI Act for smooth eviction of
unauthorized occupants from the airport premises and has held in paras-
58 and 59 of the judgment as under :
58. Premises owned by AAI are premises that the public exchequer has
paid for. Such premises are public premises. The parties consciously
agreed that the land leased for the hotel and the flight kitchen would be
treated as public premises. The law governing public premises and
eviction of unauthorised occupants was always applicable to the land
leased to Leela by AAI. In 2003, the AAI Act was amended to empower
the AAI to directly exercise powers to evict unauthorised occupants.
The availability of a new law is of no import to the non-existence of an
arbitration agreement insofar as eviction is concerned - I have already
dealt with this issue above. To now inflict violence to the beneficial
provisions of Chapter VA of the AAI Act, aimed at achieving a wider
public purpose of ensuring that private parties whose leases have
expired, do not squat on the AAI's land, is unacceptable.
59. The objective and purpose of Chapter VA of the AAI Act is to enable
smooth eviction of unauthorised occupants from public premises
owned by the AAI. The right to occupy the 18,000 Land and the 11,000
Land flowed from the lease deeds. Leela is itself not keen to retain the
11,000 Land, and has asserted in its submissions filed in this Court that
it has often offered to return the same. As regards the 18,000 Land,
Leela has been the beneficiary of ad hoc extensions from time to time
and is prima facie in occupation, without authority of a lease deed.
Whether it has a contract for extension on the same terms for another
30 years, and that too when admittedly such extension has not yet been
granted sanction by the Competent Authority, is a matter that can
squarely be determined by the Eviction Officer when he hears the
matter on merits.
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38) This Court concluded in para-66 of the judgment in HLV
Limited as under:
66. In the result, it would be appropriate to summarise my findings
thus:
a) The arbitration agreements executed between AAI and Leela, which
are contained in the lease deeds, do not cover within their ambit, the
subject matter of eviction of unauthorised occupation by Leela of the
leased land, and recovery of associated rent and damages;
b) The parties had explicitly agreed to the position that the land leased
to Leela would constitute public premises despite the construction of
the building for conduct of business of the hotel and flight kitchen.
Therefore, one need not look beyond the contract and into legislation
to determine if eviction is excluded from the scope of arbitration;
c) The reference to the Public Premises Eviction Act in each of the lease
deeds leads to the identification of the class of disputes and differences
for their exclusion from coverage by arbitration. The reference to the
said legislation has the effect of affirming the parties' consensual
commitment by contract that eviction and related recoveries would fall
outside the scope of arbitration. This is not a provision by which AAI is
obliged not to avail of statutory powers to effect eviction of
unauthorised users of the land;
d) The introduction of Chapter VA in the AAI Act is a new power
granted by Parliament after execution of the lease deeds, to enable a
public authority such as the AAI to recover its premises being used by
persons without authority. Eviction and recovery of lease rentals from
public premises being outside the scope of arbitration, whether some
other legislation is utilised is of no consequence to the core issue
arising in these proceedings. That legislative purpose and objective of
the AAI Act is being undermined by the contentions and arguments
about such land not being "airport premises" which is neither relevant
nor in consonance with the committed contractual position that the
land leased to Leela by AAI constitutes public premises;
e) There was no requirement to amend the lease deeds to replace
references to Public Premises Eviction Act with references to the AAI
Act. Such a course of action was totally unnecessary since what is
achieved by the provisions of the lease deeds is to exclude eviction and
recovery from arbitration;
f) Both the leases - for the 18,000 Land and the 11,000 Land - have
expired. Prima facie, the continued occupation of the land is
unauthorised and squarely brings the matter within the jurisdiction of
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Chapter VA of the AAI Act. This has no implication for the arbitration
agreements, which in any case, provided for eviction of the land under
the then applicable law, to be outside the scope of arbitration;
g) Whether or not one could hold that the lease for the 18,000 Land was
extended for another 30 years on the same terms without any revision
and on the same terms and conditions, is a facet of the matter that can
be eminently argued by Leela before the Eviction Officer when
attempting to show cause in reply to Eviction Officer's notice. Prima
facie, the parties not having actually executed and registered a new
lease deed, and the parties having accepted the ad hoc short term
extensions of the lease, and the last extension has expired;
h) The filing of the Suit by Leela seeking a declaration that the
extension of lease for another 30 years has been granted, undermines
Leela's submissions about the dispute being arbitrable. On the contrary,
it signals an attempt to litigate across forums, with the hope to
continue the status quo and thereby prolong the enjoyment of the
leased land at outdated lease rentals and that too beyond the expiry of
the contracted lease periods;
i) Past arbitrations in relation to the minimum guaranteed amounts
payable under the lease for the 11,000 Land have nothing to do with
eviction proceedings. In fact, the Delhi High Court has had occasion to
stricture and impose costs on Leela when setting aside an arbitral
award confirming that no amounts are payable by Leela in relation to
the 11,000 Land - that position attained finality after approach to the
Supreme Court;
j) In any event, it is Leela's case that it is ready and willing to hand over
the 11,000 Land and therefore it should not have any issue with
handing the same over. Any dispute or difference relating to
implications of utilisation of FSI entitlements on such land and
damages therefor, can indeed be subjected to arbitration;
k) Eviction proceedings shall be conducted by the Eviction Officer in
question with due dispatch and if necessary, on a day-to-day basis in
accordance with law. Leela is directed to participate in the proceedings
to enable completion of the same expeditiously;
l) All disputes and differences other than those relating to eviction and
recovery of lease rentals are amenable to arbitration. Considering that
this component of the disputes are covered by the arbitration
agreement in existence, no useful purpose would be served by keeping
the Section 11 Applications pending and alive. In these circumstances,
such components of disputes and differences (other than eviction and
related dues) are hereby referred to arbitration by Justice (Retd.) Sanjay
V. Gangapurwala, former Chief Justice of Madras High Court and this
Court. The parties shall approach the Learned Arbitral Tribunal within a
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period of one week of the upload of this judgement on the website of
this Court to take instructions on how to proceed further in the matter;
and
m) Considering the nature of the contentions raised and the
implications of long-term protection secured on an interim basis, and
considering the quality of the contentions raised by the losing party,
costs must follow the event. The costs imposed above shall be honoured
by Leela within a period of four weeks from the upload of this
judgement on the Court's website
39) Thus, the judgment of this Court in HLV Limited
conclusively decides the issue that disputes and differences relating to
eviction of unauthorized occupants in the airport premises are not
arbitrable. However, in para-66(l) this Court directed that only those
disputes and differences, which do not relate to eviction and recovery of
lease rentals, are amenable to arbitration.
40) The judgment of HLV Limited has been confirmed by the
Apex Court by dismissing the Special Leave Petition filed by HLV Limited
by a reasoned order dated 21 July 2025. It was sought to be canvassed
before the Apex Court by HLV Limited that since this Court appointed
arbitrator for resolution of other disputes, the eviction proceedings
under the AAI Act were not maintainable. The Apex Court has rejected
the contention by holding that direction in para-66(l) envisages
resolution of only those disputes and differences other than those
relating to eviction and recovery of lease rentals. The Apex Court has
confirmed the view of this Court that the issue relating to eviction and
recovery of lease rentals are excluded from arbitration. The Apex Court
has refused to interfere with the judgment of this Court, but has left
open all points to be canvassed before the Eviction Officer. Paras-3 to 16
of the order dated 21 July 2025 passed by the Apex Court reads thus:
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3. We heard Mr. Mukul Rohtagi, the learned senior counsel appearing
for the petitioner, Mr. Tushar Mehta, the learned Solicitor General
appearing for the Union of India alongwith Mr.N Venkatraman, the
learned A.S.G.
4. The principal argument canvassed by Mr. Rohtagi before us is that as
the parties are to go for arbitration, the proceedings under the
provisions of the AAI Act for the purpose of eviction are not
maintainable.
5. The eviction proceedings have been instituted on the premise that
the leases for the two parcels of land have expired. According to the
High Court, the continued occupation of the land is unauthorised and
would bring the matter within the jurisdiction of Chapter VA of the AAI
Act.
6. We tried to understand the principal submission of the learned
counsel by looking into para 66 (l) closely.
7. At the cost of the repetition, we reproduce para 66 (l) as under:-
"l) All disputes and differences other than those relating to eviction and
recovery of lease rentals arc amenable to arbitration. Considering that
this component of the disputes are covered by the arbitration
agreement in existence, no useful purpose would be served by keeping
the Section 11 Applications pending and alive. In these circumstances,
such components of disputes and differences (other than eviction and
related dues) are hereby referred to arbitration by Justice (Retd.) Sanjay
V. Gangapurwala, former Chief Justice of Madras High Court and this
Court. The parties shall approach the Learned Arbitral Tribunal within a
period of one week of the upload of this judgement on the website of
this Court to take instructions on how to proceed further in the matter"
8. Prima facie para 66(l) makes it very clear that the disputes and
differences which the Arbitrator has to now look into are the ones other
than those relating to eviction and recovery of lease rentals.
9. The two issues i.e. the eviction and the recovery of lease rentals are
excluded from Arbitration.
10. However, the argument proceeds further. The arguments proceeds
on the footing that since the arbitrator is looking into the other larger
issues, why the possession and occupation of the petitioner should be
disturbed at this stage.
11. Having gone through the materials on record, more particularly, the
impugned order(s) passed by the High Court, there is no good reason for
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us to say at this stage that the proceedings instituted under Chapter VA
of the AAI Act are without jurisdiction.
12. The Adjudicating Authority under the AAI Act is yet to hear the
parties. It shall be open for the petitioner(s) as well as the respondents
to put forward all their submissions before the authority.
13. Ultimately, if any adverse order is passed by the authority under the
AAI Act, the same is appealable.
14. At this point of time, we see no good reason to interfere with the
impugned judgment and order(s) passed by the High Court.
15. We keep all submissions open for both the sides to be canvassed
before the authority concerned.
16. The petitions stand disposed of accordingly.
41) The Delhi High Court has also taken a similar view in
Airport Authority of India Versus. M/s. Grover International Ltd.
(supra). The Delhi High Court has held that the question of validity or
invalidity of termination effected by AAI was a dispute to which PP Act
and the rules framed thereunder applied and which was excluded from
the arbitration clause. The Delhi High Court held that once proceedings
under the PP Act are initiated, then the invalidity of termination has to
be set up as a defense in those proceedings only and cannot be subject
matter of adjudication before any other fora. The Delhi High Court held
in para-28 of the judgment as under :
28. I am also not satisfied with the reply of the counsel for GIL to the
query posed at the outset. The question of validity or invalidity of
termination of the agreement effected by AAI was a dispute to which PP
Act and the rules framed thereunder applied and which was thus
excluded from the arbitration clause. A tenant/lessee of a public
premises, upon its tenancy/lease being determined cannot, before the
public authority has had an opportunity to initiate proceedings for
eviction under the PP Act, rush and raise the dispute of validity of
termination in a Court or in arbitration proceedings and invite
adjudication thereon and contend that the same is maintainable for the
reason of the proceedings under the PP Act having not been initiated
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till then. If the public authority does not initiate the proceedings under
the PP Act, the termination in any case would be to no avail, whether it
be valid or invalid. However if proceedings under the PP Act are
initiated, then the invalidity of the termination has to be set up as a
defence in the said proceedings only and cannot be a subject matter of
adjudication before any other fora. Under Section 5 of the PP Act the
satisfaction to be accorded whether a person is an unauthorized
occupant or not is of the Estate Officer and not of any other fora. If the
argument of the counsel for GIL were to be accepted, it would frustrate
the jurisdiction of the Estate Officer. On the contrary if it were to be
held that a finding by a Civil Court or an arbitrator is not binding on the
Estate Officer, rendering such a finding would be meaningless and
which no Court or arbitrator would return. The finding of invalidity is
thus in the teeth of the bar of Section 15 of the PP Act. The Supreme
Court in Ashoka Marketing v. Punjab National Bank AIR 1991 SC 855
held PP Act to be a special legislation enacted to deal with the mischief
of rampant unauthorized occupation of public premises. The Division
Bench of this Court in Fabiroo Gift House v. ITDC 2003 (66) DRJ 243
also held that claims adjudicable before Estate Officer are not
arbitrable.
42) Thus, though the Petitioners may be aggrieved by
termination notices dated 22 March 2025, if they believe that the
terminations are illegal or invalid, this can only be their defense in the
eviction proceedings initiated by the eviction officer. The issue of validity
of termination notices cannot be determined separately in arbitration.
43) In India Trade Promotion Organisation (supra) the Division
Bench of Delhi High Court has interpreted a pari materia provision under
Section 15 of the PP Act, which bars and prohibits any Court from
entertaining any suit or proceedings for eviction. The Delhi High Court
held that PP Act is a special Act which prescribes complete procedure for
adjudication of proceedings under that Act, which is a complete code in
itself. The Delhi High Court further held that provisions of Sections 5
and 7 of the PP Act cannot be made subject matter of arbitration. The
Delhi High Court further held that the jurisdiction conferred by the
statute cannot, by a contract, be conferred upon an arbitrator or made
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subject matter of reference before an arbitrator. Referring to the
judgment of the Apex Court in Ashoka Marketing Ltd. Versus. Punjab
National Bank 17 The Delhi High Court held that PP Act was enacted to
control rampant unauthorized occupation of public premises by
providing machinery for eviction of persons in unauthorized occupation
and the Rent Control Act which is also a special Act, cannot override the
provisions of the PP Act. The Delhi High Court held that the same reason
would equally apply to PP Act and the arbitration. The Delhi High Court
held in para-38 of the judgment as under:
38. Section 15 read with Sections 5 and 7 of the PP Act confers exclusive
jurisdiction on the Estate Officer appointed under Section 3 of the
aforesaid Act to deal with the applications under Sections 5 and 7.
Section 15 of the PP Act bars and prohibits any Court from entertaining
any suit or proceeding for eviction, etc. as provided under Clauses (a) to
(e) therein. The general power of the Court under Section 9 of the Code
of Civil Procedure, 1908 to entertain suit or proceedings is therefore
ousted if a dispute raised falls in Clauses (a) to (e) of the aforesaid
section. Sections 5 and 7 of the PP Act empowers an Estate Officer
appointed under Section 3 to deal with applications for eviction of
unauthorised occupants and applications for payment of rent and
damages in respect of public premises. The Act also prescribes a
procedure for filing an appeal by a person aggrieved by an order passed
by the Estate Officer under Section 9 of the PP Act. The aforesaid Act is,
therefore, a special Act which also prescribes complete procedure for
adjudication of proceeding under the PP Act. The said Act is a complete
code in itself. We do not think that proceedings under Sections 5 and 7
of the PP Act can be made subject matter of arbitration. The said
enactment is a special legislation, whereby specific powers have been
conferred on an Estate Officer to adjudicate and decide applications
under Sections 5 and 7 of the PP Act. Courts have been prohibited and
restrained from exercising jurisdiction over matters mentioned in
Sections 5 and 7 of PP Act in view of Section 15 of the PP Act. Reading
of Sections 5 and 7 makes it clear that it is the Estate Officer alone who
has the sole and exclusive jurisdiction to decide applications under
Sections 5 and 7 of the Said Act. The said jurisdiction conferred by the
statute cannot by a contract be conferred upon an arbitrator or made
subject matter of reference before an arbitrator. PP Act has given
exclusive jurisdiction to an Estate Officer, who alone has authority to
17
1990 (4) SCC 406,
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determine the specified disputes and matters and, therefore, these are
not matters that can be referred to an Arbitrator. There cannot be
waiver of statutory provisions. Contract must be within the legal
framework. Parties cannot contract out of the statute. The matters on
which an Estate officer has exclusive jurisdiction are not arbitrable and
parties by a contract cannot agree to refer matters on which jurisdiction
has been conferred and given to Estate Officer. Arbitrability of the
claims covered by Sections 5 and 7 of PP Act is therefore excluded. We
are fortified in our conclusion by the judgment of the Supreme Court in
the case of Ashoka Marketing Limited v. Punjab National Bank, (1990) 4
SCC 406. In the said case the question arose whether the Rent Control
Act which also a special Act will override the provisions of PP Act. It was
held that the PP Act is a special statute relating to eviction of
unauthorised occupants from public premises and will prevail over
Delhi Rent Control legislation which is intended to deal with the
general relationship of landlords and tenants in respect of premises
other than Government premises. Rent Control legislation, it was held
is also a special statute but was enacted earlier in point of time.
However, both enactments are special statutes in relation to the
matters dealt with therein and in such circumstances, it is the objective
and purpose behind the two enactments, that determines which
enactment will apply and given preference. The purpose and objective
underlying the two Acts and intentment are conveyed by the language
of the relevant provisions [See Shri Ram Narain v. The Simla Banking
and Industrial Company Limited, 1956 SCR 603]. Applying the said
principles in Ashoka Marketing (supra) it has been held that PP Act was
enacted to control the rampant unauthorised occupation of public
premises by providing machinery for eviction of persons in
unauthorised occupation. The said enactment has a public purpose and
interest. Special powers in this regard have been conferred under the
enactment on the Estate Officer to deal with the problem of
unauthorised occupation in premises belonging to Government, public
companies and corporations controlled and owned by the Central
Government. Same reasoning will equally apply to PP Act and
Arbitration and Conciliation Act.
44) In Board of Trustees for the Port of Kolkata Versus. Vijay
Kumar Arya and others the issue before the Division Bench of the
18
Calcutta High Court was whether Eviction Officer appointed under the
PP Act had the necessary authority and competence to determine the
issue of legality, validity or propriety of notice to quit issued by the port
18
2009 SCC Online Cal 266
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trust. Answering the issue in the affirmative, the Division Bench of the
Calcutta High Court held in paras-28 and 33 of the judgment as under :
28. After the Ashoka Marketing case the question that is posed here
should scarcely have arisen. Any further doubt is now settled by the
Nusli Neville Wadia judgment. Though an estate officer under the said
Act is not required to be versed in law, he has sufficient powers to
decide the, question as to whether a notice under section 4 of the said
Act is an unauthorised occupant and it is the adjudication on such score
against the notice that will permit him to proceed to evict the occupant
adjudged to be unauthorised. Just as in the case of any landlord
governed by the Transfer of Property Act such landlord would have to
justify his decision to determine the lease or terminate the authority of
the occupier to remain in possession in a civil suit instituted either by
the landlord for eviction or by the lessee or occupier to challenge the
notice, so is it with a statutory authority landlord under the said Act of
1971. The said Act merely removes the authority of the Civil Court to
adjudicate such issue and places it before an estate officer under the
said Act to decide the matter in summary proceedings. The estate
officer has to look into all material before him and, in fit cases, receive
oral evidence before he can arrive at a conclusion as to whether the
notice under section 4 of the said Act is in unauthorised occupation of
the public premises. If he holds that the notice is, indeed, an
unauthorised occupant he proceeds to remove the notice and his
belongings from the public premises; if he finds that the notice is
entitled to continue in possession, the matter is over. It is only the
entire scope of adjudication on such issues that it removed from a Civil
Court and is placed before the estate officer; the substantive law under
the Transfer of Property Act may still be cited before the estate officer
and taken into account by him for the purpose of his adjudication. The
usual process under the Civil Procedure Code is merely substituted by a
summary procedure before the estate officer. The only difference is that
the lessee or occupier of any public premises may not bring a matter
before the estate officer of his own accord, such lessee or occupier may
only defend his position as respondent if the estate officer is moved by
the statutory authority landlord.
33. In view of the bar, under section 15 of the said Act, of the Civil
Court's jurisdiction to entertain any suit or proceedings in respect of
eviction of any person who is in unauthorised occupation of any public
premises, if the estate officer does not have authority to adjudicate as
to whether a person is in unauthorised occupation of the concerned
public premises it would lead to an anomalous situation with the Writ
Court being the only forum available to the alleged unauthorised
occupant. Such an interpretation would leave the said Act of 1971 very
vulnerable. The estate officer must be seen to have the power to
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adjudicate the fundamental issue as to whether a noticee under section
4 of the said Act is in unauthorised occupation. It is only upon such
interpretation that the said Act of 1971 would be a complete code in
respect of matters relating to the determination of a lease of any public
premises or termination of the authority to occupy such public
premises and the consequential eviction of the occupier upon him
being adjudged to be in unauthorised occupation. Both the Ashoka
Marketing and the Nusli Neville Wadia judgments support this view.
45) There is yet another order of the Delhi High Court in
Turkinz (supra) where application under Section 11 of the Arbitration
Act is decided in the context of arbitration agreement contemplating two
kinds of disputes. One fell within the purview of PP Act and the others,
which could be referred to arbitration. The Delhi High Court held that
dispute concerning unauthorised occupation of licensed premises was
covered by PP Act and only other disputes could be referred to
arbitration. It is held in paras-2 to 4 as under:
2. A plain reading of the above clause makes it clear that both the
parties have anticipated two kinds of disputes. One falling within the
purview of the Public Premises (Eviction of Unauthorized Occupants)
Act, 1971 ('PP Act') and the other which could be referred to arbitration.
3. At present, admittedly, proceedings against the Petitioner under the
PP Act regarding the alleged unauthorised occupation of the premises
consequent upon the termination of the license are in progress. It is
only upon the conclusion of those proceedings will it be clear whether
the Petitioner would have other claims against the Respondent which
would be require to be referred to arbitration.
4. Mr. Rajat Aneja, Advocate for the Petitioner, does not dispute that in
view of the decision in Maruti Suzuki India Ltd vs. ITDC Ltd. 2011 (4)
Arb LR 384 and the decision dated 25th April 2016 in W.P.(C)
No.588/2016 [M/s Fortune Grand Management Pvt. Ltd. v. Delhi
Tourism & Transport Corporation] disputes concerning the
unauthorised occupation of licensed premises of Respondent No.1
would be covered under the PP Act and that it is only any other dispute
that can be referred to arbitration
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46) Mr. Tamboly has strenuously contended that it is too early at
this stage to foresee or imagine the exact claim that would be filed by the
Petitioners before the arbitrator. He submits that only after the
statement of claim is filed, a clarity would be achieved as to which part of
the claim is arbitrable and which is not. He has submitted that since
some disputes can admittedly be referred to arbitration in view of
judgment of this Court in HLV Limited and of Delhi High Court in
Turkinz, and reference in respect of disputes be made to arbitration
leaving open the objections of arbitrability to be decided by the Arbitral
Tribunal under Section 16 of the Arbitration Act. This precise submission
was apparently made before the Apex Court while assailing the judgment
in HLV Limited. However, the Apex Court has not accepted the
suggestion that since arbitrator was appointed for 'other' issues, even the
issues relating to possession and occupation of premises can be looked
into by the arbitrator instead of being decided under Chapter-VA of the
AAI Act.
47) Mr. Tamboly has relied on judgments of the Apex Court in
Krish Spinning (supra) and Office for Alternative Architecture (supra) in
support of his contention that this Court must adopt hands-off approach
and make reference to arbitration leaving open all objections to
arbitrability. I am unable to agree. When this Court has already arrived at
a finding that the disputes relating to eviction and recovery of airport
premises are non-arbitrable, there is no question of making reference to
arbitration or for grant of any interim measures in favour of the
Petitioner.
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48) Mr. Tamboly has relied on judgment of the Apex Court in
Food Corporation of India Versus. Shreekanth Transport (supra) and
State of Goa Versus. Praveen Enterprises (supra) in support of his
contention that the expression 'excepted matters' applies only where the
contract clearly provides that specified matters are to be finally
adjudicated by the named authority and that the scope of such exclusion
must be found in the contract and cannot be enlarged by implication.
While there can be no dispute about the proposition canvassed by Mr.
Tamboly, in the present case, the factum of disputes and differences
relating to eviction and recovery of airport premises being 'excepted
matters' is writ large, both by virtue of contractual clauses 25.1 and 25.10
of the license agreement, as well as provisions of Section 25-M of the
AAI Act r/w. Section 2(3) of the Arbitration Act. The proposition
therefore will have no application in the facts of the present case.
49) Mr. Tamboly has sought to contend that the disputes
concerning breach of license agreement or validity of termination are
arbitrable, unless expressly excluded and has relied upon judgments in
J.G. Engineers Private Ltd. (supra) and Bharat Sanchar Nigam Limited
and another Versus. Motorola India Private Ltd. (supra). However, as
observed above, the issue of validity of termination notices would be a
defense which can be set up by the Petitioners before the Eviction Officer
in proceedings initiated under Chapter-VA of the AAI Act. Therefore, the
issue of invalidity of termination or commission of breaches of by AAI of
the license agreement are not arbitrable, since they are also covered by
provisions of Chapter-VA of the AAI Act.
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50) Mr. Tamboly has relied on judgment of the Apex Court in
Arjun Singh (supra) in support of his contention that though earlier
interlocutory orders may not always operate as res-judicata, repeated
applications on same facts and seeking same reliefs can be rejected as
abuse of process. This submission is canvassed by referring to
interlocutory order passed by this Court on 23 June 2025, in which this
Court had recorded prima-facie observations about judgment in HVL
Limited being distinguishable. The findings recorded in the interlocutory
order passed by this Court on 23 June 2025 in the present proceedings for
granting status-quo would not bind this Court while deciding the present
proceedings finally. The observations made in the order dated 23 June
2025 are only prima-facie and made for the purpose of deciding the issue
of grant of ad-interim measures. By no stretch of imagination, can it be
contended that the said findings would bind me while deciding the
proceedings finally.
51) Though Mr. Samdani has relied upon observations made by
this Court while allowing review petitions in Satyavan Vishnu Agate
(supra) in support of his contention that this Court has recorded findings
about exclusion of disputes and differences covered under Chapter-VA of
the AAI Act from arbitration agreement, I propose not to rely upon those
findings. In Satyavan Vishnu Agate this Court had passed orders
appointing arbitrator in Section 9 Petitions by recording consent of AAI
for arbitration. Appeals were filed challenging those orders by relying on
provisions of Chapter-VA of the AAI Act, which were disposed of granting
liberty to the AAI to seek review of the orders passed by the Single Judge,
who had recorded the consent and admission on behalf of AAI.
Accordingly review petitions were filed before the learned Single Judge
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and by judgment dated 16 April 2026, the learned Single Judge has
allowed the Review Petitions by restoring Section 9 Petitions. However,
the learned Single Judge has clarified in para-32 of the judgment that all
observations made by the Court are only in furtherance of need to
consider whether Section 9 Petitions deserve to be restored. Though the
learned Single Judge has made observations in favour of AAI about
exclusion of disputes and differences covered by Chapter-VA of the AAI
Act from arbitration clause, I do not propose to rely on those findings in
view of clarification issued in para-32 of the judgment.
CONCLUSIONS
52) The conspectus of the above discussion is that disputes and
differences relating to eviction and recovery of airport premises are non-
arbitrable and therefore reference to arbitration cannot be made in
relation to those disputes. Even the issue relating to invalidity of
termination notices are non-arbitrable since the same can be a defence
of the Petitioners in eviction proceedings before the Eviction Officer. It is
only those issues which do not concern eviction, recovery of possession,
recovery of rent/damages etc. and which are not covered by Chapter-VA
of the AAI Act, which can be resolved by the mode of arbitration. As of
now, the disputes sought to be raised by the Petitioners are only in
respect of termination notices dated 22 March 2025 by which their
licenses are terminated. Those disputes are not capable of being resolved
through arbitration for the reasons indicated above. If Petitioners have
any disputes and differences with the AAI, which are not covered by
Chapter-VA of the AAI Act, the Petitioners will be free to file fresh
Section 11 applications qua those disputes alone.
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53) Since reference to arbitration cannot be made in relation to
disputes and differences concerning termination of license agreements
and eviction of Petitioners, there is no question of granting any interim
measures in their favour. Chapter-VA of AAI Act is a complete code in
itself. The eviction proceedings are already initiated by the Eviction
Officer. If and when an order for eviction of Petitioners is passed by the
Eviction Officer, the Petitioners have the remedy of filing appeal before
this Court under the provisions of Section 28-K of the AAI Act. Since no
interim measures can be made in favour of the Petitioners, Section 9
Petitions will have to be necessarily dismissed.
ORDER
54) I accordingly proceed to pass the following order:
I. Commercial Arbitration Petition (L.) Nos.13393 of 2025
and 12378 of 2025 filed under Section 9 of the Arbitration
Act are dismissed and ad-interim measures granted
earlier stand vacated.
II. Commercial Arbitration Application No. 38289 of 2025 is
disposed of granting liberty to the Applicant therein to
file fresh application for seeking reference to arbitration
only qua disputes to which provisions of Chapter-VA of
the AAI Act do not apply.
55) With the above directions, all the three proceedings are
disposed of. There shall be no order as to costs.
Digitally signed
SPONSORED
[SANDEEP V. MARNE, J.]
by NEETA
NEETA SHAILESH
SAWANT
SHAILESH Date: Page No.40 of 40
SAWANT 2026.05.07
19:48:34
+0530 7 May 2026
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