Rajiv Sahai Endlaw, J.@mdashCS(OS) No.1532A/2000 was filed under Sections 14 and 17 of the Arbitration Act, 1940 for filing of the Arbitration Award dated 01.06.2000 in this Court. The Airport Authority of India (AAI) had also filed CS(OS) No.1507A/2000 for filing of the same award in this Court. Upon the award being filed in this Court, AAI vide I.A. No.550/2001 in CS(OS) No.1507A/2000 filed objections to the award. No objections to the award were filed by the petitioner herein M/s Grover International Ltd. (GIL). Both the suits were being taken up together for hearing. Finally vide common judgment dated 28.01.2011 in both the suits, the objections of AAI to the award were allowed and the award to the said extent was set aside; the remaining award was made Rule of the Court. At the time of pronouncement aforesaid on 28.01.2011, it was mentioned by the counsel for GIL that these applications being I.A. No.6619/2008 and I.A. No.8433/2008 both under order XXXIX Rule 2A of CPC & Contempt of Court Act, 1971 in CS(OS) No.1532A/2000 were pending consideration and had not been heard. Thereafter these applications were, from time to time, on request of either of the parties adjourned. Today the counsels have been heard.
2. AAI had vide Agreement dated 07.09.1989 granted lease to GIL of 28000 sq. mtrs. of land for a term of 30 years for the purpose of constructing and running of not less than 400 living rooms Five Star Hotel including a Shopping Arcade; after the expiry of the term of the lease, the hotel with fixture and fittings was to become the property of AAI without payment of any compensation. GIL had earlier filed CS(OS) No.2287/1994 u/s 20 of the Arbitration Act, 1940 seeking reference of disputes which had arisen between the parties in relation to the said agreement, to arbitration. It was inter alia the case of GIL that though under the Agreement aforesaid AAI was required to hand over possession of the land on 07.09.1989 and though on 22.02.1990 some papers regarding delivery of possession were signed but on inspection of site, it was found that there was an electric sub-station on the land along with underground and overhead live electrical cables / poles and owing whereto GIL could not take over the actual possession of the land. It was further the case of the GIL that though it had not been put into possession of the land but AAI unilaterally enhanced the rate under the Agreement and served a notice dated 07/09.06.1994 upon GIL to show cause as to why the Agreement be not terminated. It was yet further the case of GIL that it had been put into possession of the land only on 11.11.1993 and was not liable to pay any amount agreed to be paid under the Agreement to AAI for any period prior thereto.
3. The said CS(OS) No.2287/1994 was disposed of vide judgment dated 08.05.1995 by referring the disputes to arbitration (and which resulted in the Arbitration Award aforesaid). CS(OS) No.2287/1994 was accompanied with an application for interim measures u/s 41 of the Arbitration Act, 1940 and in the order dated 08.05.1995 disposing of the suit, it was also directed that GIL shall not be dispossessed from the land without due process of law.
4. After the Arbitration Award dated 01.06.2000 and filing of CS(OS) No.1507A/2000 and CS(OS) No.1532A/2000 and objections aforesaid by AAI to the award, GIL filed I.A. No.8132/2007 in CS(OS) No.1532A/2000, u/s 18 read with Section 41 of the Arbitration Act, 1940 stating that though its possession of the land was protected vide order dated 08.05.1995 (supra) but AAI had erected steel mesh around the said land and construction activity was being carried out thereon; that AAI had thus illegally encroached upon the said land. GIL thus sought appointment of a Local Commissioner to ascertain the status of the land and injunction restraining AAI from carrying any construction activity on the said land and interfering with GIL''s possession thereof.
5. The said I.A. No.8132/2007 was disposed of vide order dated 23.11.2007. The order records that on the said application, a Local Commissioner had been appointed and who had reported, that two rooms, a Batching Plant, one generator house and a cement storage house besides raw material etc. were found on the said land and that all this were for construction of a runway at the Indira Gandhi International (IGI) Airport; the Local Commissioner further reported that the construction work of the runway was scheduled to be completed by the end of March, 2008 and after which the Batching Plant, generator house and cement storage house would be dismantled. I.A. No.8132/2007 was thus disposed of with the following directions:In the meanwhile, this application can be disposed of with the direction that the respondent (AAI) shall ensure that the Batching Plant, generator house and the cement storage house etc. are removed and the activities being carried out there are stopped because in their estimation the entire work of the runway would be completed by the end of March, 2008, as indicated in the Local Commissioner''s report. The said direction will be complied with by 01.06.2008 and would be subject to any orders passed in the main matter.
6. I.A. No.6619/2008 (under Section 2(b) read with Section 12 of the Contempt of Court Act, 1971 and under order XXXIX Rule 2A of CPC) was filed on 26.05.2008 averring that AAI was not showing any intent to comply with the order dated 23.11.2007 (supra) as per which the Batching Plant etc. was to be removed from the land by 01.06.2008.
7. AAI on 16.07.2008 filed a reply to the said application stating that it had on 04.04.2006 entered into an Operation, Management and Development Agreement with Delhi International Airport Ltd. (DIAL) under which the Operation, Management and Development of the IGI Airport had been taken over by DIAL from AAI with effect from 03.05.2006 and DIAL was in actual physical possession since then; that the subject land falls within the IGI Airport and is part of the Agreement with DIAL; that the subject land was near to the second and third runways / Taxiways of the Airport; that the Batching Plant on the land was set up for construction of the runways; no permanent construction had been carried out on the land and the Batching Plant was also temporary; that though AAI had informed DIAL of the order dated 23.11.2007 (supra) but the construction for the purpose whereof Batching Plant was set up was still not complete and had been delayed and thus Batching Plant could not be removed; that DIAL had already filed an application for extension of time. An unconditional apology was also tendered for having not complied with the order dated 23.11.2007.
8. At this stage, it may be stated that DIAL had on or about 30.05.2008 filed I.A. No.7605/2008 for impleadment in CS(OS) No.1532A/2000 and I.A. No.7606/2008 for extending the time granted in order dated 23.11.2007 till 31.12.2009. Though notice of these applications was issued but no formal order was made thereon till the disposal of the suit on 28.01.2011. However as recorded in the judgment dated 28.01.2011, the counsel for DIAL was also heard in the matter.
9. I.A. No.8433/2008 (also u/s 2(b) read with Section 12 of the Contempt of Court Act, 1971 and under order XXXIX Rule 2A of CPC) was also filed in or about July, 2008 seeking action against the officials of AAI for violation of the order dated 23.11.2007 (supra). The counsel for GIL states that no notice even of the said application has been issued till now. On inquiry as to why a second application for the same relief as claimed in I.A. No.6619/2008 was necessitated, the counsel for GIL states that since I.A. No.6619/2008 had been filed few days prior to 01.06.2008 till when time for compliance was given to AAI, it was deemed expedient to file another application after the expiry of the said time.
10. The counsel for GIL has argued that AAI has not sought any extension of the time granted in order dated 23.11.2007; that the application of DIAL seeking extension is of no avail as the order dated 23.11.2007 was against AAI; AAI has even suppressed the Agreement entered into with DIAL and though purported to file the same but the copy filed is the Agreement with Mumbai International Airport Ltd.; that the Batching Plant etc. were finally removed on 03.12.2009 instead of on 01.06.2008 as directed in the order dated 23.11.2007. Reliance is placed on paras 27 and 29 of
11. The senior counsel for AAI has contended that the delay of nearly one and a half years in removing the Batching Plant is not deliberate; that since all the rights had been vested in DIAL, it was bonafide believed that an application for extension filed by DIAL was sufficient and no separate application was required to be filed by AAI. Attention is also invited to Section 12(4) of the Airports Authority of India Act, 1994. Reliance is placed on
12. The counsel for DIAL has drawn attention to para 2 (xvii) of I.A. No.6619/2008 to show that GIL was also aware of the delivery of possession of the land to DIAL and the presence of DIAL. Attention is also invited to I.A. No.7606/2008 setting out the reasons for the delay and for extension of time. 13. The counsel for GIL in rejoinder has contended that notice of I.A. No.8433/2008 ought to be issued and the explanation of the officials of AAI in the matter be called.
14. A perusal of the order dated 23.11.2007 of which non compliance is alleged, particularly the operative part thereof set out hereinabove shows that the time given by this Court till 01.06.2008 for removing of the Batching Plant etc. was on the basis of the then statement on behalf of AAI that the construction of the runway will be completed by then and the Batching Plant etc. would not be required and would be removed. Significantly, even though it was the case of GIL itself in I.A.
No.8132/2007 on which the order dated 23.11.2007 had been made that AAI had in violation of the earlier order dated 08.05.1995 inducted DIAL and the said Batching Plant etc. had been put on the land but no action for violation if any by AAI of the order dated 08.05.1995 was ordered and the only direction issued was for removal of the Batching Plant by 01.06.2008 by which time AAI had stated that its utility would disappear. GIL also did not take the matter any further and was satisfied with the order dated 23.11.2007.
15. The counsel for GIL has not disputed that the construction of the runway and for which purpose the Batching Plant was put up was delayed and that the Batching Plant was removed as soon as the construction was complete. Once that is found to be the position, the element of ''deliberate'', ''willful'', ''intentional'', necessary to invoke Order XXXIX Rule 2A of CPC or the provisions of the Contempt of Court Act, 1971 disappear. The tenor of the order dated 23.11.2007 clearly shows that the intent of the Court was to direct the removal of Batching Plant after the completion of the work of construction of runway and immediately after completion thereof the Batching Plant was removed.
16. It is also not as if no application whatsoever was filed for extension. Application as aforesaid was filed by DIAL on 30.05.2008 i.e. prior to expiry of time on 01.06.2008. The only question which thus remains is whether the application ought to have been necessarily by AAI.
17. I am again satisfied with the explanation of AAI. AAI in its reply to I.A. No.6619/2008 also has stated that DIAL had been asked to move the necessary application for extension. No case thus for proceeding under Order XXXIX Rule 2A of CPC or under Contempt of Court Act, 1971 is made out. The position having emerged as aforesaid, need is not felt to call for reply in I.A. No.8433/2008. Both I.A. No.6619/2008 and I.A. No.8433/2008 are dismissed.
No costs.
