MUMBAI INTERNATIONAL AIRPORT PVT. LTD.versusM/S. GOLDEN CHARIOT AIRPORT AND ANR.

                      (2010] 12 S.C.R. 326

A         MUMBAI INTERNATIONAL AIRPORT PVT. LTD.
                               v.
          MIS. GOLDEN CHARIOT AIRPORT AND ANR.
                (Civil Appeal No. 8201 of 2010)

                       SEPTEMBER 22, 2010
B
       [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

          Approbate and Reprobate: Shifting of stands - Licence
    granted to run a restaurant for limited period - Notice issued
C   for vacating the licenced premises after expiry of licenced
    period - Suit for declaration and injunction by licencee on the
    ground that the licence was irrevocable - Civil court returned
    the plaint holding that it did not have pecuniary jurisdiction to
    hear the case - In appeal, licencee dropped the prayer that
D   licence was irrevocable - Suit revived and decreed on the
    ground that terms of licence provided for applicability of the
    provisions of Public Premises Act, 1971 - Proceedings before
    Estate Officer - Estate Officer directing licencee to vacate the
    premises - Licencee's plea before Supreme Court that the
E   licence was irrevocable - Held: A litigant cannot change and
    choose its stand to suit his convenience and prolong a civil
    litigation on prevaricated pleas - The common law doctrine
    prohibiting approbation and reprobation is a facet of the law
    of estoppel - The licencee took a stand before High Court that
F   the licence was revocable and got the benefit as a result of
    taking such stand in as much as it got the suit revived and
    tried and got the benefit of an interim order in the said
    proceedings - As a result of the said stand, the suit went on
    before the civil court from 2001 to 2004 and in view of the
G   interim protection, licencee ran the restaurant during that
    period - The licencee on a complete volte-face of its previous
    stand cannot urge its case of irrevocable licence before the
    Estate Officer and before the Supreme Court - Even
    otherwise, the licence by its very term was revocable - Since
H                                 326
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. GOLDEN 327
               CHARIOT AIRPORT

licencee took inconsistent stands, and thereby prolonged A
litigation for more than a decade and did not pursue its
proceedings honestly in different fora, therefore, its appeal is
dismissed with costs assessed at Rs. 5, 00, 0001- - Doctrine of
estoppe/ - Leave and licence - Plea - Costs.
                                                                   8
      Leave and licence: Licence - Revocable licence - Held:
Whether a contractual licence is revocable or not, depends
on the express terms of the contract - A contractual licence
is normally revocable, except in certain circumstances that
are expressly provided for in Easement Act, 1882 - On facts,
plea of licencee that it invested money in construction of C
restaurant on the oral assurance by the officers of Airport
Authority (AA/) about extension of licence so as to make it
irrevocable was of no legal consequence - No such
assurance was proved, even if it is proved, such assurance
did not and would not bind the AA/ - Being a statutory D
corporation, AA/ was totally bound by the Act and the
Regulations framed under the Act - Plea of discrimination on
the ground that cases of other licencees were extended
whereas in the case of licencee, the licence was not extended,
not factually correct as its licence was also extended twice - E
Airports Authority of India Act, 1994 - Airports Authority of
 India (Amendment) Act, 2003 - Airports Authority of India
(Contract) Regulations 2003 - Regulation 3(2) - Constitution
of India, 1950 - Article 14 - Easement Act, 1882 - s.52.
                                                                    F
      Constitution of India, 1950: Article 14 - Plea of
discrimination - Held: Can only be raised if a person has a
right in law, to be treated in a particular way, but that treatment
is denied to him, whereas others are given the same
treatment.
                                                                   G
    Public Premises (Eviction of Unauthorised
Occupants) Act, 1971: s.3 - Power of Central Government
to appoint Estate Officer u!s.3 - Notification dated 1. 7.1997
published in the Official Gazette by Central Government for
                                                                   H
    328     SUPREME COURT REPORTS                [2010] 12 S.C.R.


A appointment of several persons as Estate Officers for the
  purpose of the 1971 Act - By a further notification dated
  15.5.07, published in the Official Gazette, previous notification
  amended and for the words 'Airport Director', the words
  'Deputy General Manager (Land Management)' substituted
8 - Estate Officer who decided the case of the licencee was
  promoted and brought to Mumbai as Deputy General
  Manager (Land Management) - Therefore, by virtue of his
  designation as Deputy General Manager (Land
  Management), he was a valid Estate Officer - Airports
C Authority of India Act, 1994.

         The contesting respondent entered into a licence
    agreement with the Airport Authority of India (AAI) for
    running a restaurant covering 5000 sq. ft., in front of
     Mumbai Airport. The licence was valid for a period of
D   three years, from 27.11.1995 to 26.11.1998. The
    provisions of Public Premises (Eviction of Unauthorised
    Occupants) Act, 1971 and the rules framed thereunder
    were made applicable to the licence agreement. After the
    initial grant of the said licence, the same was, under
E   request of the contesting respondent, extended upto
    26.5.2000. On 4.5.2000, AAI sent notice to the contesting
    respondent to vacate and hand over physical possession
    of the licenced premises by 26.5.2000. On 15.5.2000, the
    contesting respondent filed a suit praying for cancelling
F   the notice dated 4.5.2000 and for permanent injunction
    restraining AAI from evicting, demolishing or removing
    the restaurant premises of contesting respondent without
    adopting the due process of law. The contesting
    respondent prayed in the suit that the AAI granted an
G   irrevocable licence and, therefore, it has no right to
    terminate, cancel or revoke the licence. The City Civil
    Court returned the plaint under Order 7 rule 10, CPC, inter
    alia, on the ground that it did not have the pecuniary
    jurisdiction to hear the case in view of the declaration
H
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. GOLDEN 329
               CHARIOT AIRPORT

prayed for. Aggrieved by the said order, the contesting A
respondent filed an appeal before the High Court. When
the said appeal came up for hearing, it was represented
by the contesting respondent that they would drop the
prayer for the declaration that the licence was irrevocable.
On such stand taken by the contesting respondent, the B
High Court remanded the matter to the City Civil Court
granting liberty to the contesting respondent to move
proper application for amendment of the plaint. After the
remand, the City Civil Court decreed the suit holding that /
the terms of the licence showed that both the parties had C
agreed to submit themselves to the provisions of 1971
Act and, therefore, AAI was bound to follow the due
process of law for evicting the contesting respondent
from the suit premises in terms of 1971 Act. Thereafter,
the proceedings were initiated before the Estate Officer. D

     The contesting respondent made repeated requests
to AAI for extension of licence. Further hearings before
the Estate Officer were conducted and on 12.01.05, after
completion of the hearing and closing of the summary
proceedings, the contesting respondent addressed a E
letter contending that the hearing of the matter be.
deferred until AAI communicated its decision on its
request for the extension of the licence. On 18.3.2005, the
Estate Officer rejected the request of the contesting
respondent. Aggrieved, the contesting respondent filed F
the writ petition which was dismissed as withdrawn.

    On 7.3.2006, the Estate Officer passed an order
holding that the contesting respondent was in
unauthorized occupation of the licenced premises, which G
was a public premises and it was liable to be evicted.

     In view of the policy for privatization of airports, on
4.4.2006, Mumbai International Airport Private Ltd. (MIA)
was granted the exclusive right and authority for a period
                                                               H
    330    ·SUPREME COURT REPORTS            [2010] 12 S.C.R.

A   of 30 years by AAI to undertake some of the functions of
    AAI. Pursuant to such right, most of the immovable
    properties of AAI includi'ng the licenced premises were
    leased to MIA. Meanwhile, the contesting respondent filed
    an appeal before the City Civil Court against the order of
B   the Estate Officer. In the said appeal, MIA was not party.

         In 2007, MIA took out a chamber summons before the
    City Civil Court for impleading itself as a party in the
    appeal which was allowed and ultimately the appeal of
    the contesting respondent was dismissed. The
C   contesting respondent filed a writ petition in the High
    Court without making MIA a party. On 26.7.2008, the High
    Court passed an ex parte ad interim order directing the
    parties to maintain status quo. The impleadment
    application of MIA was allowed. On 4.3.2009, the High
D   Court allowed the writ petition and remanded the matter
    to the Estate Officer for fresh decision on the ground that
    the order cif the Estate Officer was null and void. for his
    failure to consider the case himself as he had verbatim
    reproduced the entire order of his predecessor with few
E   cosmetic changes. The matter was remanded to the
    Estate Officer and on 17.3.2009, the hearing was
    adjourned since SLPs were filed by MIA and AAI
    challenging the order dated 4.3.2009. Subsequently,
    during the pendency of the SLPs, a representation was
F   made before the Supreme Court on 29.1.2010 that there
    was no Estate Officer for hearing the matter. The Supreme
    Court directed AAI to appoint an Estate Officer under the
    1971 Act. On 11.2.2010, the Court was informed that one
    Mr. K.K Gupta, Deputy General Manager (Land
G   Management) was appointed as the Estate Officer under
    Section 3 of the 1971 Act, to hear the case of the
    contesting respondent. In view of that, parties were
    directed to appear before the Estate Officer. On 29.4.2010,
    the Estate Officer passed the final order directing the
H
MUMBAI INTERNATIONALAIRPORT PVf. LTD. v. GOLDEN 331
               CHARIOT AIRPORT

contesting respondent to vacate the premises and to pay      A
damages for unauthorized occupation of the premises by
payment of compensation and municipal taxes. The
contesting respondent filed appeal before the City Civil
Court challenging the same. The matter was placed
before the Supreme Court on 11.5.2010 and on that date       B
the counsel for the contesting respondent took a stand
that the proceedings pending before the Supreme Court
arising out of the two SLPs had become infructuous. The
Supreme Court held that the proceedings taken up by it
did not become infructuous and also directed transfer of     c
the appeal pending before the City Civil Court to the
Supreme Court. When the matter was taken up by the
Supreme Court, it was contended by the contesting
respondent that there was an oral assurance for an
extension of the licence to the extent that it would be an
                                                             D
irrevocable licence and relying on such oral extension,
the contesting respondent made substantial investment
for constructing the restaurant; that the licence was
irrevocable; that the Estate Officer did not give the
contesting respondent a proper hearing; and that Mr. K.K     E
Gupta was not authorized to discharge the functions of
an Estate Officer in accordance with Section 3(a) of the
1971 Act.

    Allowing the appeals, the Court
                                                             F
    HELD: 1. The case of the contesting respondent
before all the forums was that though the licence period
commenced on and from 27.11.95, the restaurant was
made operational on 1.1.97. The initial period of licence
was upto 26.11.98. l:herefore, on its own showing, the       G
contesting respondent completed the construction of the
restaurant by 1.1.1997, which was well within the initial
licence period, which was upto 26.11.98. Admittedly
thereafter, there were two extensions of the licence
                                                             H
   332     SUPREME COURT REPORTS             [2010] 12 S.C.R.


A period upto 26.5.2000. Therefore, the construction having
  been completed and the restaurant being operational by
  1.1.1997, there was no occasion for the contesting
  respondent to urge that it invested money in the
  construction of the restaurant on the oral assurance by
B the officers of the AAI about extension of the licence so
  as to make it irrevocable. The Airports Authority of India
  (Contract) Regulations 2003 have been framed by ~he
  AAI with the previous approval of the Cehtral
  Government. The regulations are statutory. The said
c Regulations specify that contracts by AAI are required to
  be sealed with the common seal of AAI. They further
  provide that contracts are to be made with the previous
  approval of the Central Government and AAI. Regulation
  3(2) also state that all contracts shall be finalized by the
  execution of a Deed of Agreement, Deed of Licence,
0
  Indenture or like instrument, duly signed by AAI and the
  party concerned, and the said instruments or deeds are
  to be executed on non-judicial paper of appropriate
  stamp value when necessary. Having regard to the said
  statutory framework, the case of the contesting
E respondent that it was orally assured of extension of
  licence by some officer of AAI is of no legal consequence.
  No such assurance was proved, even if it is proved, such
  assurance did not and would not bind the AAI. Being a
  statutory corporation, it was totally bound by the Airports
F Authority of India Act, 1994 and the Regulations framed
  under the Act. [Paras 40, 46-49) [348-D-F] [349-E-H] [350-
  A-B]

      2. It is well known that a mere licence does not create
G any estate or interest in the property with which it is
  concerned. Normally a licence confers legality to an act,
  which would otherwise be unlawful. A licence can be
  purely personal, gratuitous or contractual. Whether a
  contractual licence is revocable or not, would obviously
H depend on the express terms of the contract. A
 MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. GOLDEN 333
                CHARIOT AIRPORT

 contractual licence is normally revocable, except in             A
 certain circumstances that are expressly provided for in
 the Indian Easement Act, 1882. In the instant case, the
  licence by its very term was revocable. The stand of the
 contesting respondent that its licence is irrevocable as
  it has invested money in the premises and made                  B
  construction is directly contrary to the stand which it took
  before the High Court and which was recorded in the
  High Court's prder dated 12.7.01. When the City Civil
  Court returned the plaint filed by the contesting
  respondent, it came up in appeal against the said order         c
  before the High Court, wherein it expressly gave up its
  claim of irrevocable licence in order to revive the suit. On
  such stand, the High Court remanded the suit for trial
  before the City Civil Court. It is, therefore, clear that the
  contesting respondent took a stand before a court of law        D
  and also got the benefit as a result of taking such stand
  in as. much as it got the suit revived and tried, and got
  the .benefit of an interim order in the said proceedings.
, As a result of the said stand, the suit of the contesting
  respondent went on before the City Civil Court from 2001        E
  to 2004 and in view of the interim protection, the
  contesting respondent ran the restaurant during that
   period. The contesting respondent on a complete volte-
  face of its previous stand cannot urge its case of
  irrevocable licence before the Estate Officer and before
  the Supreme Court. A litigant cannot change and choose          F
  its stand to suit its convenience and prolong a civil
   litigation on prevaricated pleas. The common law doctrine
   prohibiting approbation and reprobation is a facet of the
   law of estoppel and well established in Indian
  jurisprudence also. [Paras 50, 52-55] [350-C-E-G-H] [351-       G
  A-F] ,

     b. Beepathumma Ors. v. V. S. Kadambolithaya Ors.
                        &                               &
 1964 (5) SCR 836; Mis New Bihar Biri Leaves Co. & Ors. v.
 Statr of Bihar & Ors. (1981) 1 sec 537, relied on.               H
    334     SUPREME COURT REPORTS            [2010] 12 S.C.R.


A     Benjamin Scarf v. Alfred George Jardine (1881-82) 7
  Appeal Cases 345; Tinkler v. Hilder (1849) 4 Exch 187;
  Clough v. London and North Western Rail Co. (1861-73) All
  ER; Harrison v. Wells 1966 (3) All ER 524; Kok Hoang v.
  Leong Cheong Kweng Mines Ltd. (1964) Appeal Cases 993;
B Dwijendra Narain Roy v. Joges Chandra De AIR 1924 Cal
  600, referred to.

        Muskett v. Hill (1839) 5 Bing (NC) 694; Heap v. Hartley
    (1889) 42 Ch. Div. 461, referred to.

C      3. The complaint of the contesting respondent that
  Mr. K.K. GfJpta, while acting as Estate Officer and deciding
  the proceedings, failed to observe the principles of natural
  justice, by: not summoning the officers of AAI, is without
  any substance. The Estate Officer gave adequate reasons
D for not summoning the officers of AAI by holding that
  beyond 26.5.2000, there was no written extension of the
  licence period. The Estate Officer rightly held that when
  written documents were there, any oral assurance, which
  purported to contradict the written documents need not
E be considered. The Estate Officer held that it has to decide
  whether the contesting respondent is in unauthorized
  occupation of the public premises within the meaning of
  the 1971 Act. That being the sole purpose of his enquiry,
  the Estate Officer thought, and rightly so, that its enquiry
F cannot be widened by including a plea of discrimination
  under Article 14 raised by the contesting respondent.
  Apart from that, the plea of discrimination raised by the
  contesting respondent on the ground that cases of other
  licensees have been extended whereas in its case, the
G licence has not been extended is not factually correct in
  as much as the licence of the contesting respondent was
  also extended twice. In any event, a plea of discrimination
  can only be raised in aid of a right. If a person has a right
  in law, to be treated in a particular way, but that treatment
  is denied to him, whereas others are given the same
H
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. GOLDEN 335
               CHARIOT AIRPORT

treatment, a plea of discrimination can be made out. The A
contesting respondent has no right in law, to get its
licence extended. Therefore, one cannot have a plea of
negative equality under Article 14. There may be very
many administrative reasons for extending the period of
licence of other licensees, but that does not give rise to B
a valid plea of discrimination, when admittedly the
contesting respondent has no right in law to get an
extension. [Paras 66-69] [354-E-F] [355-8-C; E-G]

     4. Section 3 of the 1971 Act provides for the power
of the Central Government to appoint an Estate Officer. C
The Ministry of Civil Aviation and Tourism, Department of
Civil Aviation, issued a notification dated 1. 7 .1997,
appointing several persons as Estate Officers for the
purpose of the 1971 Act. That notification was published
in the Official Gazette. By a further notification dated D
15.5.07, published in the Official Gazette, the Central
Government amended its previous notification and for the
words 'Airport Director', the words 'Deputy General ·
Manager (Land Management)' were substituted. While
issuing a notification under Section 3, the Central E
Government has to name a person or an individual as an
Estate Officer. The appointment of such Estate Officer is
by designation only. Mr. K.K. Gupta who functioned as
an Estate Officer and decided the case of the contesting
respondent was promoted and brought to Mumbai as F
Deputy General Manager (Land Management). This was
admitted in the affidavit of the contesting respondent.
Therefore, Mr. K.K. Gupta by virtue of his designation as
Deputy General Manager (Land Management) discharged
his function as a valid Estate Officer. (Paras 70-73] (357- G
A-F]

    5. The contesting respondent has blown hot and
cold by taking inconsistent stand, and has therefore
prolonged several proceedings for more than a decade.      H
    336     SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A It did not pursue its proceedings honestly in different
    fora. Therefore, the appeal is dismissed with costs
    assessed at Rs.5,00,000/- to be paid by the contesting
    respondent in favour of the Supreme Court Mediation
    Center. [Para 75] [357 -A-C]
8
                         Case Law Reference:
     (1839) 5 Bing (NC) 694           referred to        Para 51
     (1889) 42 Ch. Div. 461           referred to        Para 51
c    (1881-82) 7 Appeal Cases 345 referred to            Para 56
     (1849) 4 Exch 187                referred to        Para 57
     (1861-73) All ER                 referred to        Para 58

D    1966 (3) All ER 524              referred to        Para 59

I    (1964) Appeal Cases 993          referred to        Para 60
     AIR 1924 Cal 600                 referred to        Para 61'
     1964 (5) SCR 836                 relied on          Para 63
E
     (1981) 1 sec 537                 relied on          Para 64
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8201 of 2010.

F       From the Judgment & Order dated 4.3.2009 of the High
    Court of Judicature at Bombay in Writ Petition No. 5591 of
    2008.

                               WITH

G   C.A. No. 8200 of 2010.

         G.E. Vahanvati AG, C.A. Sundaram, Chander Uday Singh,
    Shyam Diwan, Farid Karachiwala, Amar Dave, Ashish Jha,
    Meenakshi Chatterjee, Abhishek Gupta (for "Coac"), Praveen
H   Jain, T.S. Sindhu, Mukesh Kumar, K.P. Singh, V.K. Sharma (for
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. GOLDEN 337
               CHARIOT AIRPORT

M.V. Kini & Associates), Gp. Capt. Karan Singh Bhati,                   A
Aishwarya Bhati, Rashid Khan, Vinay J. Hegde, Rakesh Sinha
for the appearing parties.

    The Judgment of the Court was delivered by

     GANGULY, J. 1. Leave granted.                                      B

     2. These two appeals, one by Mumbai International Airport
Pvt. Ltd. and another by Airport Authority of India, seek to
impugn the judgment of the High Court dated March 4, 2009.
                                                                        c
       3. The relevant facts of the case are that M/s Golden
Chariot Airport (hereinafter referred to as "the contesting
respondent") succeeded in a tendering process for running a
del.uxe grade-I restaurant, covering a space of about 5000 sq.
ft., in the car park zone in front of Terminal 1A of the Mumbai         D
Airport. Pursuant to the said bid of the contesting respondent,
a Licence Agreement dated 16.1.96, was entered into between
the Airport Authority of India (hereinafter AAI) and the c(jlntesting
respondent.

     4. Some of the clauses of the said Licence Agreement               E
are relevant as one of the arguments advanced by the
contesting respondent, before the Estate Officer, the High Court
and this Court is that the licence is irrevocable. It has also been
urged by the contesting respondent, that apart from the Licence
Agreement, there has been an oral extension of the licence and          F
the contesting respondent was assured that it is irrevocable,
and on the basis of such assurance, it has invested
considerable money in building-the restaurant.

     5. From the first clause of the Licence Agreement it is            G
clear that the licence is valid for a period of three years, from
27.11.95 to 26.11.98. Apart from the first clause, there are
several other clauses in the licence, like clauses 23, 24, 26,
27 and 29 in the General Terms and Conditions, which are a
part of the Licence Agreement. The aforesaid clauses are set
o~                                                                      H
    338       SUPREME COURT REPORTS                  [2010] 12 S.C.R.


A         "23. In the event of the Licensee being prohibited from
          selling one or more articles in the premises because of
          Government Laws/Rules/Regulations/Orders, the Authority
          shall not be liable for any loss suffered by the Licensee in
          such an event the Licensee shall not be entitled to any
B         reduction in the fees payable to the Authority or permission
          for sale of additional items.

          24. The Licensee shall deposit duplicate keys of the
          premises with the Authority whenever the Airport Director
          demands and permit the Authority to make use of the keys
c         during the emergency. The Licensee shall not remove or
          replace the lock on the outdoor or change the locking
          device on the said outer door of the shop.

          25.xxx
D
          26. On expiry of the period or on termination of the licence
          by the Authority on account of any breach on the part of
          the Licensee, the Licensee shall deliver the possession of
          the premises in good condition and peaceful manner along
          with furniture, fittings, equipments and installations, if any,
E
          provided by the Authority. Further, Licensee shall remove
          his/their goods and other materials from the premises
          immediately, failing which Authority reserves its right to
          remove such goods/materials at the cost and risk of the
          Licensee and demand payment for such removal. If such
F         payment is not made within 10 days, Authority shall be at
          liberty to dispose off the goods/materials of the Licensee
          by public auction to recover the cost. The Licensee shall
          not be entitled to raise any objection in such an eventuality.

G         27. The licence herewith granted shall not be construed in
          any way as giving or creating any other right or interst in
          the said space building(s)/land/garden/tank/ premises to
          or in favour of the Licensee but shall be construed to be
          only as a licence in terms and conditions herein contained.
H
MUMBAI INTERNATIONAL AIRPORT PVT.LTD. v. GOLDEN 339
   CHARIOT AIRPORT [ASOK KUMAR GANGULY, J.]

    28. xxx                                                        A
    29. The provision of the Public Premises (Eviction of
    Unauthorised Occupants) Act, 1971 and the rules framed
    thereunder which are now in force or which may hereafter
    came into force shall be applicable for all matters provided   B
    in the said Act."

     6. It is clear from what is extracted above that the licence
is not irrevocable. Apart from that it is clear that the provisions
of the Public Premises (Eviction of Unauthorized Occupants)
Act, 1971 and the Rules framed thereunder have been made C
applicable to the Licence Agreement. It is not in dispute that
after the initial grant of the said licence, the same was, under
request of the contesting respondent, extended upto 26.5.2000.
Before the extended period couM expire, a notice dated
4.5.2000 was sent by the Senior Commercial Manager on D
behalf of AAI to the contesting respondent, requesting it to
vacate and hand over physical possession of the licensed
premises on expiry of the extended licence on 26.5.2000.

     7. Instead of doing so, the contesting respondent filed, on   E
15.5.2000, a suit in the Bombay City Civil c"ourt being suit No.
3050/2000, praying for canceling the notice dated 4.5.2000 and
for permanent injunction restraining AAI from evicting,
demolishing; or removing the restaurant premises of the
contesting respondent without adopting the due process of law.     F
In the said suit, the contesting respondent prayed for a
declaration that the AAI has granted an irrevocable licence and
AAI has no right to terminate, cancel or revoke the licence. The
exact prayer to the af9resafd 'effect is as under:
                     /
     (a) "For a declaration of this Hon'ble Court thereby          G
     declaring that the defendants have granted an irrevocable
     licence in favour of the plaintiffs in respect of the said
     restaurant business situated at the car park of Terminal 1A
     of Santa Cruz Airport Mumbai, and that the same is
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    340       SUPREME COURT REPORTS                  [2010] 12 S.C.R.


A         subsisting valid and in full force and effect and further that
          the defendants have no right to terminate, revoke and/or
          cancel the same and/or interfere with the peaceful running
          of the said business of the plaintiffs at least till such time
          as the said land, beneath the said restaurant is not
B         required for Airport related development purpose."

          8. On such suit being filed, the Bombay City Civil Court
    returned the plaint under Order VII Rule 10 of Civil Procedure
    Code (for short "CPC"), inter alia, on the ground that the City
    Civil Court does not have the pecuniary jurisdiction to hear the
C   case in view of the declaration prayed for.

         9. Aggrieved by the said Order, the contesting respondent
    preferred an appeal before the Bombay High Court. When the
    said appeal came up for hearing on 12.7.01, it was represented
D   by the contesting respondent that they will drop the prayer in
    Clause (a) of the plaint, which is the prayer for the dedaration
    that the licence is irrevocable. On such stand being taken by
    the contesting respondent before the Bombay High Court, there
    was a consensus between the parties, and the High Court was
E   pleased to pass the following Order:

          "...... the impugned order is set aside without examining
          the merits or demerits of the impugned order and the
          matter is question is remitted back to the City Civil Court,
          Bombay granting liberty to the Plaintiff to move proper
F         application for amendment of the plaint so as to enable
          him to delete prayer clause (a), and other pleadings raised
          in support thereof in the plaint. ..... .

        10. In view of the aforesaid Order of the High Court, the
G matter was remanded to the Bombay City Civil Court. The City
  Civil Court decreed the suit by a judgment dated 11.2.04. In
  the said judgment, the Bombay City Civil Court held that on a
  reading of clauses 16, 29 and 30 of the Licence Agreement it
  was clear that both parties had agreed to submit themselves
H to the provisions of the Public Premises (Eviction of
MUMBAI INTERNATIONALAIRPORTPVT. LTD. v. GOLDEN 341
   CHARIOT AIRPORT [ASOK KUMAR GANGULY, J.]
Unauthorized Occupants) Act, 1971/ (hereinafter referred to as   A
the 1971 Act) and Rules framed thereunder. The Court thus held
that the AAI were bound to follow the due process of law for
evicting the contesting respondent from the suit premises, as
given under the 1971 Act.
                                                                 B
     11. Accordingly, proceedings were initiated before the
Estate Officer on 27.09.04 and notices were issued by the
Estate Officer under Sections 4, 5, 5A, 58 and 7 of the 1971
Act to the contesting respondent. Hearings were conducted on
26.10.04 and 8.11.04.
                                                                 c
      12. On 13.11.04, the contesting respondent addressed a
letter to AAI for extension of licence with respect to the licensed
premises till AAI required it for airport development purposes.
Further hearings before Estate Officer were conducted and on
12.01.05, after completion of the hearing and closing of the D
summary proceedings, the contesting respondent addressed
a letter contending that the hearing of the matter be deferred
until AAI communicated its decision on the letter dated
13.11.04. The contesting respondent once again addressed a
letter dated 11.02.05 to the Estate Officer reiterating the same E
request and urged the Estate Officer to reopen the case to
enable the contesting respondent to lead evidence in the
matter. On 18.03.05, the Estate Officer heard the case of the
contesting respondent and rejected the same.

      13. Aggrieved, the contesting respondent filed a writ      F
petition (No. 2900/2005) before the Bombay High Court. On
30.06.05, the Bombay High Court dismissed the writ petition
by passing the following order:

     "Allowed to withdraw the liberty to make a fresh application G
     which shall be decided, in accordance with law. All
     questions, including the questions of tenability, are left
     open."

     14. Meanwhile, the Estate Officer Mr. V.K. Monga was        H
    342      SUPREME COURT REPORTS                   [2010] 12 S.C.R.


A   transferred and a new Estate Officer Mr. Narinder Kaushal was
    appointed. Mr. Kaushal forwarded a copy of the record of
    proceedings to Mr. Monga by a letter dated 11.08.05. Mr.
    Monga, by letter dated 12.09.05, forwarded a draft summary
    of the proceedings.
B
         15. Even after withdrawal of the writ petition, a letter dated
    28.12.05 was written by the advocate of the contesting
    respondent referring to the withdrawn writ petition, and
    requesting the Estate Officer for a11 adjournment of proceedings
    in view of its previous letter dated 13.11.04.
c
         16. On 7.3.06, the Estate Officer passed a detailed Order
    in EO Case No.6/2004, holding inter alia that the contesting
    respondent was in unauthorized occupation of the licensed
    premises, which was a public premises and it was liable to be
D   evicted from the said premises under Section 5 of the 1971
    Act with effect from 27.05.2000.

          17. Aggrieved thereby, the contesting respondent filed an
    appeal under Section 9 of the 1971 Act before the Bombay City
E   Civil Court (M.A. No. 39/2006), which was dismissed by the
    Bombay City Civil Court on 24.7.2008.

          18. It may be mentioned here that between 2003 to 2006,
    Union of India, through its Ministry of Civil Aviation, came out
    with a policy for privatization of airports. Resultantly, the Airports
F   A11thority of India Act, 1991 was amended by the Airports
    Authority of India (Amendment) Act, 2003. Accordingly, Mumbai
    International Airport Private Ltd. (MIA) was incorporated on
    2.03.06 with the object of operating, maintaining, developing,
    designing, constructing, upgrading, modernizing and managing
G   the Mumbai Airport and to enter into contracts with third parties
    for the said purpose.

        19. On 4.04.06, MIA entered into an Operation,
    Management and Developr:nent Agreement (OMDA) whereby
H   AAI granted MIA the exclusive right and authority (for 30 years
MUMBAI INTERNATIONAL AIRPORT PVT.LTD. v. GOLDEN 343
   CHARIOT AIRPORT [ASOK KUMAR GANGULY, J.]

commencing from 3.05.06) to undertake some of the functions           A
of the AAI such as operation, maintenance, development,
design, construction, upgradation, modernization, finance and
management of the Mumbai Airport.

    20. Pursuant to the OMDA, AAI entered into a Lease                B
Agreement dated 26.04.06, by which most of the immovable
properties of AAI at the Mumbai Airport, including the licensed
premises, were leased to the MIA.

    21. In 2007, MIA took out a Chamber Summons before the
Bombay City Civil Court for impleading itself as a party in the       C
appeal filed by the contesting respondent (Appeal No.39/2006).
The appeal of the contesting respondent and the Chamber
Summons of MIA were heard by the Bombay City Civil Court.
By its Order dated 24.07.08, the Bombay City Civil Court
dismissed the appeal of the contesting respondent and allowed         D
the Chamber Summons of MIA.

     22. After the dismissal of its appeal by the City Civil Court,
the contesting respondent filed a writ petition (No. 5591/2008)
in the Bombay High Court, without making MIA a party. On              E
26.07.08, the Bombay High Court passed an ex-parte ad-
interim Order directing the parties to maintain status quo. On
28.07.08, MIA filed a civil application for impleadment in the
writ proceedings before the High Court and on 6.08.08 the High
Court allowed the same.
                                                                      F
    · 23. The Bombay High Court passed the impugned Order
on 4.03.09 whereby it allowed the writ petition and set aside
the judgment of the Bombay City Civil Court dated 24.07.08.
The High Court held that the order of the Estate Officer Mr.
Kaushal was null and void for his failure to consider the case        G
himself as he had verbatim reproduced the entire order of Mr.
Monga with a few cosmetic changes. The High Court thus
remanded the matter to the Estate Officer for a fresh decision
in accordance with law.
                                                                      H
    344      SUPREME COURT REPORTS                [2010] 12 S.C.R.


A        24. After the impugned Order of the High Court dated
    4.3.09, whereby the matter was remanded to the Estate Officer,
    hearing took place on 14.5.09 by the new Estate Officer Mr. Y.
    Kumaraswamy. Hearings before Mr. Kumaraswamy were
    adjourned as by 17 .3.09, challenging the order of the High Court
B   dated 4.3.09, an SLP (6556/2009) was filed by MIA, and soon
    thereafter, another SLP challenging the same order of the High
    Court was filed by AAI on 28.3.09.

        25. In view of such SLPs being filed before this Court,
    hearing before Mr. Kumaraswamy stood adjourned.
c
        26. Both the aforesaid SLPs, now converted into appeals,
    were tagged by an order of this Court dated 8.5.09, passed in
    SLP No. 11663/2009 and thereafter were heard together. In the
    meantime, Mr. Kumaraswamy retired and one Mr. Keshav
D   Sharma, General Manager (Communication & Land
    Management) was appointed the new Estate Officer.

         27. Subsequently, during the pendency of the proceedings
    before this Court, it transpires on a representation made before
E   this Court on 29.1.10, that there was no Estate Officer for
    hearing the matter. This Court, therefore, directed AAI by its
    Order of the same date to appoint an Estate Officer under the
    provisions of the Act of 1971, within a period of 10 days and
    directed the matter to be posted for further hearing on 11.2.10.

F      28. On 11.2.10, this Court was informed that Mr. K.K
  Gupta, Deputy General Manager (Land Management) has been
  appointed the Estate Officer under Section 3 of the 1971 Act,
  to hear the case of the contesting respondent in place of Mr.
  Keshav Sharma. In view of such representation being made
G before this Court, this Court directed the parties to appear
  before the Estate Officer on 17.2.10, with a request that the
  Estate Officer was to fix a date of hearing and then to hear the
  parties and pass an appropriate Order in accordance with law
  on or before 30.4.10. It was also made clear that the Order of
H the Estate Officer would be made available to the parties within
MUMBAI INTERNATIONAL AIRPORT PVT LTD. v. GOLDEN 345
   CHARIOT AIRPORT [ASOK KUMAR GANGULY,.J.]

the next two days. The parties were given liberty, if so advised,      A
to challenge or support the Order of the Estate Officer in the
pending proceeding before this Court and which was posted
before this Court on 7.5.10.

                                     d:
     29. It appears that on 29.4.1 the Estate Officer, after           B
hearing the parties, passed a final order directing the
contesting respondent to vacate the premises. It also directed
the contesting respondent to pay damages for unauthorized
occupation of the premises by payment of compensation and
municipal taxes.
                                                                       c
     30. Aggrieved by the said Order, the contesting
respondent filed a miscellaneous appeal before the Bombay
City Civil Court, challenging the abovementioned Order of t~e
Estate Officer.
                                                                       D
     31. The matter was placed before this Court on 11.5.10
and on that date learned Counsel for the contesting respondent
took a stand that the pending proceedings before this Court
arising out of the two SLPs had become infructuous. The
impugned Order of the Bombay High Court dated 4.3.09 was               E
no longer holding the field. Instead of that, the present Order
dated 29.4.10 of the Estate Officer is the operative order and
against that already_an appeal has been filed by the contesting
respondent before the Bombay City Civil Court.

     32. Counsel for both AAI and MIA opposed the aforesaid            F
stand and contended that the proceedings before this Court
had not become infructuous and as this Court has retained its
seisin over the matter as this Court directed the Estate Officer
to decide the proceedings under the 1971 Act within a time
frame but kept the proceedings before it pending.                      G

     33. This Court further gave liberty to the parties in its Order
dated 11.2.10, to challenge the ultimate Order of the Estate
Officer in the pending proceedings before this Court.

     34. The Court after hearing the parties, held that the            H
    346       SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A proceedings before this Court had not become infructuous.
  Since the order of this Court dated 11.5.10 has a bearing on
  the issues, the same is set out:

          "Heard learned counsel for th~ parties.
B                Today when the matters were taken up before this
          Court, this Court was informed by Mr.Mukul Rohtagi,
          learned senior counsel for the petitioners that pursuant to
          the order of this Court dated 11.02.2010 the Estate Officer
          has decided the matter and passed an order dated
c         29.04.2010. Impugning the said order, the respondents
          have filed an appeal under Section 9 of the Public
          Premises (Eviction of Unauthorized Occupants) Act, 1971
          before the Principal Judge, Bombay City Civil Court,
          Mumbai. Mr.Rohtagi submitted that such filing of appeal
D         before the aforesaid judicial authority in view of the
          directions contained in that order amounts to an act of
          contempt. He further submitted that in any event, the said
          filing of appeal circumvented the order of this Court dated
          11.02.2010. Mr.Shyam Divan, learned senior counsel
E         appearing on behalf of the respondents, on the other hand,
          contended that his client has filed the said appeal in view
          of the statute made by the Parliament and his client has
          exercised that right. According to him, such right of appeal
          cannot be taken away by any order of this Court. In support
F         of his argument, he cited several decisions of this Court.

                 Mr.Rohtagi, learned senior counsel also in support
          of his submission cited several decisions and submitted
          that this Court passed the order in order to prevent conflict
          of decisions and also considering the facts and
G         circumstances and the question of public interest involved
          in this case namely the urgency of expanding Bombay
          Airport and the right of the respondents to run their
          restaurant in the said Airport.

H               This Court, however, by balancing the equity had
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. GOLDEN 34 7
   CHARIOT AIRPORT [ASOK KUMAR GANGULY, J.]

    passed the said order and the said order does not decide A
    the questions that are raised in the SLPs which are
    pending and over which this Court retains its seisin. We
    are of the view that by the order which has been passed
    namely the order dated 11.02.2010, the right of the
    respondents to file an appeal has not been taken away. B
    This Court preserved the right of the respondents and also
    permitted them to challenge the order that may be passed
    by the Estate Officer by filing an appropriate additional
    affidavit before this Court.

          In view of the above, this Court directs that the C
    appeal which has been filed by the respondents
    (Misc.Appeal No.50 of 2010) before the Principal Judge,
    City Civil Court, Mumbai be transferred to this Court. The
    record of the said appeal may form part of these SLPs.
    The petitioners are at liberty to file any additional affidavit D
    in answer to the appeal filed by the respondents. The
    respondents may also file reply to the same. Such filing
    must be completed by the parties by 09.07.2010.

          The matter may be placed for further consideration       E
    before this Court on 14.07.2010."

      35. Then the matter was taken up before this Court on
29.7.10 and the learned Counsel for the contesting respondent
submitted that Mr. K.K Gupta was not authorized to discharge
the functions of an Estate Officer in accordance with Section      F
3(a) of the 1971 Act. To respond to such a stand, the learned
Counsel for AAI took some time to produce the necessary
notifications showing the appointment of the Estate Officer.

      36. Thereafter, the matter was heard. Before this Court, the G
learned Counsel for the contesting respondent, apart from
raising the aforesaid contention that Mr. K.K Gupta was not
validly appointed as an Estate Officer, raised various other
contentions.
                                                                   H
    348      SUPREME COURT REPORTS                [2010J 12 S.C.R.


A        37. It was first contended that there was an oral assurance
    for an extension of the licence to the extent that it will be an
    irrevocable licence. Relying on such oral extension, the
    contesting respondent made substantial investment for
    constructing the restaurant. The second contention was that the
B   licence was irrevocable. The third contention was that the Estate
    Officer did not give the contesting respondent a proper hearing.

        38. Learned Counsel of both AAI and MIA strongly
    opposed the aforesaid contentions raised on behalf of the
    contesting respondent.
c
         39. This Court unfortunately is unable to uphold the
    contentions raised by the contesting respondent in view of the
    following reasons.

0        40. The case of the contesting respondent before all the
    forums is that though the licence period commenced on and
    from 27 .11.95, the restaurant was made operational on 1.1.97.
    The initial period of licence was upto 26.11.98. Therefore, on
    its own showing, the contesting respondent completed the
E   construction of the restaurant by 1.1.97, which was well within
    the initial licence period, which was upto 26.11.98. Admittedly
    thereafter, there have been two extensions of the licence
    period upto 26.5.2000. Therefore, the construction having been
    completed and the restaurant being operational by 1.1.97, there
    is no occasion for the contesting respondent to urge that it
F   invested money in the construction of the restaurant on the oral
    assurance by the officers of the AAI about extension of the
    licence so as to make it irrevocable.

      41. In fact no oral assurance of extension of licence is
G contemplated in the facts of this case. Such a contention is
  wholly misconceived.

         42. The AAI is a statutory body constituted under Section
    3 of the Airport Authority of India Act, 1994 (AAI Act). Under
H   Section 3(2) of the AAI Act, it is a body corporate with power
MUMBAI INTERNATIONALAIRPORT PVT. LTD. v. GOLDEN 349
   CHARIOT AIRPORT [ASOK KUMAR GANGULY, J.]

to hold and dispose of both movable and immovable property        A
and to contract.

    43. The power of the AAI to enter into contracts has been
conferred under Section 20 read with Section 21 of AAI Act.
As per Section 20, the AAI is competent to enter into contracts
                                                                  8
(subject to the provisions of Section 21) which may be
necessary to discharge its functions under the AAI Act.

    44. Section 21 of AAI Act lays down the mode of executing
contracts on behalf of AAI. The Section requires that every
contract on behalf of AAI is to be made by the Chairperson or C
any other member/officer who has been empowered to do so.
Further, the contracts, which have been specified in the
Regulations, have to be sealed with the common seal of AAI.

     45. Sub-section (2) of Section 21 of AAI Act provides that   D
the form and manner of the contract shall be such as may be
specified by the Regulations.                          ·- ,
                                                           I

     46. The relevant Regulations have been framed by the AAI
with the previous approval of the Central Government and in
exercise of the power conferred on it under Section 42(1) read    E
with Section 42(2)(e) and (4), read with Section 21 of the AAI
Act, 1994 and the regulations are called the Airports Authority
of India (Contract) Regulations 2003. Obviously the regulations
are statutory.
                                                                  F
     47. The said Regulations specify that contracts by AAI are
required to be sealed with the common seal of AAI. They further
provide that contracts are to be made with the previous
approval of the Central Government and AAI.

      48. Regulation 3(2) also state that all contracts shall be G
finalized by the execution of a Deed of Agreement, Deed of
Licence, Indenture or like instrument, duly signed by AA/ and
the party concerned, and the said instruments or deeds are to
be executed on non-judicial paper of appropriate stamp value
when necessary.                                                  H
    350      SUPREME COURT REPORTS                [2010] 12 S.C.R.


A        49. Having regard to the aforesaid statutory framework,
    the case of the contesting respondent that it was orally assured
    of extension of licence by some officer of AAI is of no legal
    consequence. No such assurance has been proved, even if it
    is proved, such assurance does not and cannot bind the AAI.
B   Being a statutory corporation, it is totally bound by the Act and
    the Regulations framed under the Act.

         50. The very idea of a licence being irrevocable is a bit of
    a contradiction in terms. From the clauses of the licence
    referred to above, it is clear that by its terms the licence is
c   revocable. It is well known that a mere licence does not create
    any estate or interest in the property with which it is concerned.
    Normally a licence confers legality to an act, which would
    otherwise be unlawful. A licence can be purely personal,
    gratuitous or contractual. Whether a contractual licence is
D   revocable or not, would obviously depend on the express terms
    of the contract. A contractual licence is normally revocable,
    except in certain drcumstances that are expressly provided for
    in the Indian Easement Act, 1882.

E        51. A licence has been defined in Section 52 of the Indian
    Easement Act, 1882 as a right to do or continue to do in or
    upon the immovable property of the grantor something, which,
    in the absence of such right, could be unlawful, but such right
    does not amount an easement or an interest in the property.
F   [See Muskett vs. Hill (1839) 5 Bing (NC) 694, p.707 and Heap
    vs. Hartley (1889) 42 Ch. Div. 461, p.468 (CA)].

          52. Following the aforesaid principles and the clauses in
    the licence agreement, this Court holds that the licence by its
    very term is revocable. The stand of the contesting respondent
G   that its licence is irrevocable as it has invested money in the
    premises and made construction is directly contrary to the stand
    which it took before the Bombay High Court and which was
    recorded in the High Court's Order dated 12.7.01. It may be
    noted that when the City Civil Court returned the plaint filed by
H   the contesting respondent it came up in appeal against the said
MUMBAI INTERNATIONALAIRPORT PVT. LTD. v. GOLDEN 351
   CHARIOT AIRPORT [ASOK KUMAR GANGULY, J.)

Order before the Bombay High Court, it expressly gave up its A
claim of irrevocable licence in order to revive the suit. On such
stand being taken, the High Court remanded the suit for trial
before the City Civil Court. It is therefore clear that the contesting
respondent has taken a stand before a Court of Law and also
got the benefit as a result of taking such stand in as much as it B
got the suit revived and tried and got the benefit of an interim
order in the said proceedings. As a result of the aforesaid stand
being taken, the suit of the contesting respondent went on
before the Bombay City Civil Court from 2001 to 2004 and in
view of the interim protection, the contesting respondent ran the      c
restaurant during that period.

      53. Now the question is whether the contesting respondent
on a complete volte-face of its previous stand can urge its case
of irrevocable licence before the Estate Officer and now before
this Court?                                                            D

     54. The answer has to be firmly in the negative. Is an action
at law a game of chess? Can a litigant change and choose its
stand to suit its convenience and prolong a civil litigation on such
prevaricated pleas?                                                    E

    55. The common law doctrine prohibiting approbation and
reprobation is a facet of the law of estoppel and well
established in our jurisprudence also.

     56. The doctrine of election was discussed by Lord F
Blackburn in the decision of the House of Lords in Benjamin
Scarf vs. Alfred George Jardine [(1881-82) 7 Appeal Cases
345], wherein the learned Lord formulated " ... a party in his own
mind has thought that he would choose one of two remedies,
even though he has written it down on a memorandum or has G
indicated it in some other way, that alone will not bind him; but
so soon as he has not only determined to follow one of his
remedies but has communicated it to the other side in such a
way as to lead the opposite party to believe that he has made
that choice, he has completed his election .and can go no H
         352      SUPREME COURT REPORTS                 [2010] 12 S.C.R.


     A   further; and whether he intended it or not, if he has done an
         unequivocal act. .. the fact of his having done that unequivocal
         act to the knowledge of the persons concerned is an election."

              57. In Tinkler vs. Hilder (1849) 4 Exch 187, Parke, B.,
         stated that where a party had received a benefit under an Order,
     8
         it could not claim that it was valid for one purpose and invalid
         for another. (See page 190)

              58. In Clough vs. London and North Western Rail Co.
         [(1861-73) All ER, Reprint, 646] the Court referred to Comyn's
     C   Digest, wherein it has been stated:- "If a man once determines
         his election, it shall be determined forever." In the said case,
         the question was whether in a contract of fraud, whether the
         person on whom the fraud was practiced had elected to avoid
·'       the contract or not. The Court held that as long as such party
     D   made no election, it retained the right to determine it either
         way, subject to the fact that an innocent third party must not
         have acquired an interest in the property while the forfller party
         is deliberating. If a third party has acquired such an, interest.
         the party who was deliberating will lose its right to rescind the
     E   contract. Once such party makes its election, it is bound to its
         election forever. (See page 652)

            59. In Harrison vs. Wells, 1966 (3) All ER 524, Salmon
       LJ, in the Court of Appeal, observed that the rule of estoppel
       was founded on the well-known principle that one cannot
     F approbate and reprobate. The doctrine was further explained
       by Lord Justice Salmon by holding "it is founded also on this
       consideration, that it would be unjust to allow the man,who has
       taken full advantage of a lease to come forward and seek to
       evade his obligations under the lease by denying that the
     G purported landlord was the landlord". (See page 530)

             60. In Kok Hoang vs. Leong Cheong Kweng Mines Ltd.,
         (1964 Appeal Cases 993), the Privy Council held that "a litigant
         may be shown to have acted positively in the face of the court,
     H   making an election and procuring from it an order affecting
MUMBAI INTERNATIONALAIRPORT PVT. LTD. v. GOLDEN 353
   CHARIOT AIRPORT [ASOK KUMAR GANGULY, J.]

others apart from himself, in such circumstances the court has         A
no option but to hold him to his conduct and refuse to start again
on the basis that he has abandoned." (See page 1018)

     61. Justice Ashutosh Mookerjee speaking for the Division
Bench of Calcutta High Court in Dwijendra Narain Roy vs. B
Joges Chandra Oe,(AIR 1924 Cal 600), held that it is an
elementary rule that a party litigant cannot be permitted to
assume inconsistent positions in Court, to play fast and loose,
to blow hot and cold, to approbate and reprobate to the
detriment of his opponent. This wholesome doctrine, th'e C
learned Judge held, applies not only to successive stages of
the same suit, but also to another suit than the one in which the
position was taken up, provided the second suit grows out of
the judgment in the first.

     62. It may be mentioned in this 'connection that all the          D
proceedings pursued by the contesting respondent in which it
took the plea of irrevocable licence was vi~tually in clear
contradiction of its stand which it took before the Bombay High
Court on 12.7.01 where it had given up the plea of 'irrevocable
licence'. It is on this plea that its suit again became triable by     E
the Bombay City Civil Court and all subsequent proceedings
pursued by the contesting respondent followed thereafter.

      63. This Court has also applied the doctrine of election in
C. Beepathumma & Ors. vs. V. S. Kadambolithaya & Ors.,
1964 (5) SCR 836, wherein this Court relied on Maitland as             F
saying: "That he who accepts a benefit under a deed or will or
other instrument must adopt the whole contents of that
instrument, must conform to all its provisions and renounce all
rights that are inconsistent with it." (Maitlands Lectures on
Equity, Lecture 18). This Court also took note of the principle        G
stated in White & Tudor's Leading Case in Equity volume 18th
edition at p.444 - wherein it is stated, "Election is the obligation
imposed upon a party by Courts of equity to choose between
two inconsistent or alternative rights or claims in cases where
there is clear intention of the person from whom he derives one        H
    354      SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A   that he should not enjoy both ... That he who accepts a benefit
    under a deed or will must adopt the whole contents of the
    instrument."

         64. In Mis New Bihar Biri Leaves Co. & Ors. vs. State of
    Bihar & Ors., (1981) 1 SCC 537, this Court observed that it is
B
    a fundamental principle of general application that if a person
    of his own accord, accepts a contract on certain terms and
    works out the contract, he cannot be allowed to adhere to and
    abide by some of the terms of the contract which proved
    advantageous to him and repudiate the other terms of the same
C   contract which might be disadvantageous to him. The maxim,
    qui approbat non reprobat (one who approbates cannot
    reprobate), applies in our laws too.

        65. Therefore the conduct of the contesting respondent in
D   view of its inconsistent pleas is far from satisfactory. By taking
    such pleas, the contesting respondent has succeeded in
    enjoying the possession of the premises for the last 10 years
    even after the expiry of its licence on 26.5.2000.

         66. The complaint of the contesting respondent that Mr.
E
    K.K. Gupta, while acting as Estate Officer and deciding the
    proceedings, failed to observe the principles of natural justice,
    by not summoning the officers of AAI, is without any substance.
    The Estate Officer has given adequate reasons for not
    summoning the officers of AAI by holding that beyond
F   26.5.2000, there is no written extension of the licence period.
    The Estate Officer held, and in our view rightly, that when written
    documents are there, any oral assurance, which purports to
    contradict the written documents need not be considered.
    Apart from that, this Court has already recorded that in the facts
G   of the case and in the context of the statutory dispensation
    discussed above, there is no scope for an oral extension of
    licence. Therefore, the reasoning given by the Estate Officer,
    for not calling the officers of AAI to prove the case of oral
    extension of licence of the contesting respondent, is sound and
H
MUMBAI INTERNATIONAL AIRPORT PVT.LTD. v. GOLDEN 355
   CHARIOT AIRPORT [ASOK KUMAR GANGULY, J.]

does not call for any interference by this Court even when it acts    A
as an appellate authority.

     67. The Estate Officer also declined to issue directions for
inspection of documents, as prayed for by the contesting
respondent on valid grounds. The Estate Officer held that it has      B
to decide whether the contesting respondent is in unauthorized
occupation of the public premises within the meaning of the
1971 Act. That being the sole purpose of his enquiry, the Estate
Officer thought, and rightly so, that its enquiry cannot be
widened by including a plea of discrimination under Article 14        C
raised by the contesting respondent.

     68. Apart from that, this Court also does not find any merit
in the plea of discrimination raised by the contesting
respondent, by contending that cases of other licensees have
been extended whereas in its case, the licence has not been           D
extended. Such a plea is not factually correct in as much as
the licence of the contesting respondent was also extended
twice. In any event, a plea of discrimination can only be raised
in aid of a right. If a person has a right in law, to be treated in
a particular way, but that treatment is denied to him, whereas        E
others are given the same treatment, a plea of discrimination
can be made out.

     69. We have already discussed that the contesting
respondent has no right in law, to get its licence extended.          F
Therefore, one cannot have a plea of negative equality under
Article 14. There may be very many administrative reasons for
extending the period of licence of other licensees, but that does
not give rise to a valid plea of discrimination, when admittedly
the contesting respondent has no ~ight in law to get an
extension.                                                            G

     70. Now the last point that remains is the authority of Mr.
K.K Gupta to function as an Estate Officer. This is a point more
of desperation than of substance.
                                                                      H
    356       SUPREME COURT REPORTS                  [2010] 12 S.C.R.


A      71. 'Under Section 3 of the 1971 Act, the Central
    Government's power to appoint an Estate Officer is provided.

          72. From the compilation of notifications that have been
    filed in this case by the learned Attorney General, appearing
    for AAI, it transpires that the Ministry of Civil Aviation and
8
    Tourism, Department of Civil Aviation, issued a notification
    dated 1.7.97, appointing several persons as Estate Officers for
    the purpose of the 1971 Act. That notification was published
    in the Official Gazette. By a further notification dated 15.5.07,
    published in the Official Gazette, Central Government amended
C   its previous notification and for the words 'Airport Director', the
    words 'Deputy General Manager (Land Management)' were
    substituted.

          73. It has not been argued by the learned Counsel for the
D   contesting respondent that while issuing a notification under
    Section 3, the Central Government will have to name a person
    or an individual as an Estate Officer. The appointment of such
    Estate Officer is by designation only. It is not in dispute that Mr.
    K.K. Gupta, who functioned as an Estate Officer and decided
E   the case of the contesting respondent, was promoted and
    brought to Mumbai as Deputy General Manager (Land
    Management). This is admitted in the affidavit of the contesting
    respondent. Therefore, Mr. K.K. Gupta by virtue of his
    designation as Deputy General Manager (Land Management)
F   discharged his function as a valid Estate Officer. There can be
    no dispute about his authority to do so since by the subsequent
    notification dated 15.5.07, the words 'Airport Director' have
    been substituted for words 'Deputy General Manager (Land
    Management)'. Hence, there is no substance in these
G   contentions of the contesting respondent.

         74. This Court even acting as an Appellate Authority does
    not discern any error in the Order dated 29.4.10 of the Estate
    Officer. The appeal filed by the contesting respondent before
    the City Civil Court. Mumbai and transferred to this Court is
H   therefore dismissed.
MUMBAI INTERNATIONALAIRPORT PVT. LTD. v. GOLDEN 357
   CHARIOT AIRPORT [ASOK KUMAR GANGULY, J.]

     75. However, from the facts discussed above, it is amply       A
demonstrated that the contesting respondent has blown hot and
cold by taking inconsistent stand, and has therefore prolonged
several proceedings for more than a decade. This Court is
constrained to hold that it did not pursue its proceedings
honestly in different fora. Therefore, the appeal, being Misc.      B
Appeal No. 50 of 2010, filed by the contesting respondent
before the Principal Judge, City Civil Court, Mumbai, which was
transferred to this Court by this Court's order dated 11.05.2010
and formed part of these appeals, is dismissed with costs
assessed at Rs.5,00,000/- to be paid by the contesting              c
respondent in favour of the Supreme Court Mediation Center
within a period of two months from date.

    76. The civil appeals filed by Airport Authority of India and
Mumbai International Airport are allowed. All interim orders are
vacated.

D.G:                                          Appeals allowed.