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Hotel Leelaventure Limited & Another v/s Airports Authority of India

    Writ Petition Nos. 2470 of 2017 & 2041 of 2017

    Decided On, 16 July 2018

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE A.S. OKA & THE HONOURABLE MR. JUSTICE RIYAZ I. CHAGLA

    For the Petitioners: Lalith Nair, Advocate. For the Respondent: A.A. Kumbhakoni, Advocate General a/w Snehal Shah, Ajay Khaire, Roopdaksha Basu i/b. The Law Points, Advocates.



Judgment Text

1. As far as Writ Petition No.2041 of 2017 is concerned, when it was placed on board on 9th July 2018, the following is the order passed :-

"1 There is no dispute between the parties that Writ Petition No.2041 of 2017 is required to be heard along with the two petitions which are on board. It will be open for the parties to move the Hon'ble the Acting Chief Justice for tagging the said writ petition along with this petition. Place the Petition high upon board on next Monday i.e. 16th July 2018."

(emphasis added)

2. As of today, the Hon'ble the Acting Chief Justice has not passed an order of tagging Writ Petition No.2041 of 2017 and therefore, the said matter cannot be taken up by this Division Bench. Before we deal with the submissions made today by the learned counsel appearing for the petitioners in Writ Petition No.2470 of 2017 [Writ Petition (L) No.1595 of 2017] and for the applicant in Commercial Arbitration Application No.28 of 2017, a reference to few facts will be necessary.

3. As far as Writ Petition No.2470 of 2017 is concerned, it arises out of proceedings for eviction initiated by the respondent - the Airport Authority of India against the first petitioner - Company therein for eviction under the provisions of Chapter V-A dealing with the Eviction of Unauthorised Occupants etc., of the Airport Premises under the Airport Authority of India Act, 1994 (for short "the said Act of 1994"). The subject matter of challenge in Writ Petition No.2470 of 2017 is an order passed by the Eviction Officer in the eviction proceedings by which the prayer made by the first petitioner under Section 8 of the Arbitration and Conciliation Act, 1996 has been rejected. Commercial Arbitration Application No.28 of 2017 has been filed by the first petitioner in the writ petition by invoking Section 11 of the Arbitration and Conciliation Act, 1996 (for short "the said Act of 1996") by relying upon the appointment procedure contained in the agreements dated 19th October 1983 and 22nd November 1983. Writ Petition No.2470 of 2017 which was lodged on 14th June 2017 was moved by the petitioners before a Division Bench of this Court (Coram : Anoop V. Mohta and Smt. Anuja Prabhudessai, JJ.) on 11th July 2017 which was adjourned to 12th July 2017 with the consent of the petitioners and the respondent. On 12th July 2017, the Writ Petition was placed before the said Division Bench when the Division Bench granted ad-interim relief in terms of prayer clause (d). Prayer clause (d) is for stay of eviction proceedings initiated by the respondent. The said ad-interim relief continues to operate even today.

4. On 18th July 2017, Arbitration Application No.28 of 2017 was placed before a learned Single Judge when the following order was passed :

"Mr. D'vitre for applicant states that in view of the order dated 12th July 2017 passed in Writ Petition (Lodg.) No.1595 of 2017 read with the order dated 6th June 2017 passed in the above application, the matter be stood over by four weeks to enable applicant to apply to the Hon'ble the Chief Justice of this Court for an administrative order to tag the present application to hear along with Writ Petition (Lodg.)No.1595 of 2017 since common issues are involved. Mr.D'vitre states that they would apply to the Hon'ble Chief Justice during the course of this week itself. Mr.Shah for respondent states that they will join in the application and co-operate with the applicant.

Stand over to four weeks."

5. Thus, the applicant in the Arbitration Application which is the first petitioner in Writ Petition No.2470 of 2017 (Writ Petition (L) No.1595 of 2017) stated before the learned Single Judge before whom Arbitration Application was placed that the applicant will apply to Hon'ble the Chief Justice for tagging the Arbitration Application along with Writ Petition No.2470 of 2017 (Writ Petition (L) No.1595 of 2017) which was pending before a Division Bench on the ground that common issues are involved. Accordingly, on 21st July 2017 M/s. Kanga & Co, Advocates representing the petitioners in Writ Petition No.2470 of 2017 (Writ Petition (L) No.1595 of 2017) and the applicant in the arbitration application filed a praecipe addressed to the Prothonotary and Senior Master of this Court in which a direction was sought from the Hon'ble the Chief Justice to tag the arbitration application with writ petition. The prayer made in the said praecipe reads thus :-

"Upon reading the consent of the Advocates for the Respondent hereunder subscribed BE PLEASED, to seek directions from Her Ladyship the Hon'ble Chief Justice to transfer the captioned Commercial Arbitration Application No.28 of 2017 and tag the same along with the captioned Writ Petition No. (L) 1595 of 2017 and place the same on board of His Lordship the Hon'ble Mr. Justice Anoop Mohta and Her Ladyship the Hon'ble Mrs. Justice Anuja Prabhudesai on 26th July, 2017 for hearing."

(emphasis added)

6. On the said praecipe, consent was granted by the advocate for the respondent. Thus, it is at the instance of the applicant in the arbitration application which is the first petitioner in Writ Petition No.2470 of 2017, a specific prayer was made for clubbing Arbitration Application along with the writ petition by mentioning that the writ petition was to be heard on 26th July 2017 by the aforesaid Division Bench. The record of the Arbitration Application shows that on 9th August 2017, the praecipe filed by the petitioners was placed before the Hon'ble the Chief Justice along with a Note prepared by Registry. Hon'ble the Chief Justice granted prayer clause (A) of the note prepared by the Master and Assistant Prothonotary (Judicial). Prayer clause (a) of the said note reads thus :-

"(A) Whether Commercial Arbitration Application No.28 of 2017 be tagged with Writ Petition (L) No.1595 of 2017 and to be placed before the Hon'ble Divison Bench taking up Writ Petition."

7. Thus, the petitioners moved Writ Petition No.2470 of 2017 (Writ Petition (L) No.1595 of 2017) before a Division Bench which passed ad-interim order on 12th July 2017 which operates till today. The petitioners applied to the Hon'ble Chief Justice to tag their Arbitration Application with Writ Petition No.2470 of 2017 (Writ Petition (L) No.1595 of 2017) which was being heard by Division Bench. The petitioners accepted the aforesaid order of the Hon'ble Chief Justice as the petitioners did not make any grievance about it till today as the clubbed matters were thereafter placed before various Division Benches on several dates. When Writ Petition No.2470 of 2017 and the Arbitration Application were placed before a Division Bench of this Court (Coram : Shantanu S. Kemkar and Smt. Anjuja Prabhudessai, JJ.), an order was passed directing the Registry to examine the matter and place it before the appropriate Bench. Accordingly, on 20th September 2017, the Master and Assistant Prothonotary (Judicial) submitted a note to the concerned Division Bench stating that the writ petition is required to be placed before the Hon'ble the Division Bench taking up writ petitions not assigned to the other Courts. In view of the said note that on 17th November 2017, Writ Petition No.2470 of 2017 and Commercial Arbitration Application No.28 of 2017 were placed before a Division Bench (Coram : Shantanu S. Kemkar and G.S. Kulkarni, JJ.). By consent, both the matters were adjourned to 11th December 2017. Thereafter, on 11th December 2017 and 10th January 2018 when the petitioners were represented by a learned senior advocate, the matters were placed before Division Benches.

8. On 12th March 2018, this writ petition along with Commercial Arbitration Application were moved by the respondent before this Bench by pointing out that the writ petition pertains to Airports, the same pertains to assignment of Division Bench presided over by the Hon'ble Shri Justice S.C. Dharmadhikari. It was pointed out that as the matters of the advocate on record for the petitioners are not being taken up by said Bench, as per the general standing order passed by the Hon'ble the Acting Chief Justice, the matters will have to be placed before this Bench. Accordingly, this Bench directed that the matter should be listed before this Bench. On 3rd April 2018, only Writ Petition No.2470 of 2017 was listed before this Bench which was adjourned on account of paucity of time. On 17th April 2018, the papers of the petition were produced by the respondent when after hearing the learned counsel appearing for the petitioners, the date was altered to 11th June 2018. On 15th June 2018, the writ petition was produced at the instance of the respondent, when after hearing the advocate for the petitioner, this Bench directed that the petition shall be listed on 9th July 2018 by recording that the writ petition cannot be taken up by a Division Bench presided over by the Shri Justice S.C. Dharmadhikari. The Order dated 9th July 2018 is already reproduced above.

9. In this background, now we must record what transpired today. It appears that there is a change of advocate as far as the petitioners and the applicant in arbitration application are concerned. Today, a document/written submission is tendered across the bar by the learned counsel appearing for the petitioners and the applicant which is taken on record and marked 'M' for identification. For the sake of convenience, we are reproducing the entire document.

"Your Lordship, in principle, we have no difficulty in all three matters being tagged together. Rather, we welcome it.

However, what we wish to respectfully point out is that all three matters, even when tagged together, as per current roster prescription/ subject-matter determination prescribed by Your Lordship, read with/ in the backdrop of the provisions of the Arbitration and Conciliation Act of 1996, all read with the Rules of the Bombay High Court, fall within the jurisdiction of a learned single judge of this Hon'ble Court, and not a Division Bench.

For example, Arbitration Application No.28 of 2017 is required to be heard by Court No.20 (Hon'ble Mr. Justice Kathawalla, while acting as persona designata, and not as a "Court"). Similarly, since the Writ petitions are not against the orders of any Appellate Tribunal, but against the orders of an individual of the Executive presiding over a judicial forum acting, himself, as a persona designate, and merely enforcing a small part of a Special Act, it is our respectful submission that they are required to be heard by a learned single judge of this Hon'ble Court.

This is not a minor technicality, as it has very relevant implications for preservation of our very valuable right to file an intra-Court appeal before a Division Bench, as the case may be.

Under these circumstances, we humbly request that while all three matters may most certainly be tagged together, however, they should be directed for placement before the appropriate bench presided over by a learned single judge of this Hon'ble Court, failing which the proceedings, in absence of subject-matter jurisdiction/roster determination, would be rendered coram non-judice, and, therefore, a nullity in law.

They would also be violating our valuable statutory right to an intra-court appeal.

It is further prayed most humbly that these submissions may kindly be allowed to be captured in the order of today."

10. The learned counsel appearing for the petitioners today submitted that as per Rule 636 of Chapter XXXIII of the Bombay High Court (O.S.) Rules, Writ Petition No.2470 of 2017 pertains to jurisdiction of the learned Single Judge and therefore, it should be placed before the learned Single Judge along with the arbitration application notwithstanding the order passed by the Hon'ble Chief justice on the application made by the petitioners/applicant themselves on 9th August 2017. His second submission is that the stand of the first petitioner in the writ petition is that though the said petitioner may be a lessee of the first respondent - Airport Authority of India, the writ petition does not relate to Airports as the first petitioner is not the lessee of any Airport. His submission is that the order dated 9th August 2017 passed by the Hon'ble the Chief Justice in terms of prayer (A) of the note prepared by the Registry is nullity and therefore, this Bench should ignore the said order. His submission is that he will be happy to argue this petition before this Bench as according to him in another petition decided by a Division Bench to which one of us (A.S.Oka, J.) is a party, a view is taken which supports the case of the petitioners. His submission is that when the learned Single Judge of this Court hears an application under Section 11 of the said Act of 1996, he does not hear the same as a Court and therefore, a Division Bench cannot hear application under Section 11 and this fact was not brought to the notice of the Hon'ble the Chief Justice on 9th August 2017 when the order was passed clubbing the arbitration application with Writ Petition No.2470 of 2017 which was to be placed before a Division Bench of this Court taking up the writ petitions. He submits that he is aggrieved by the second part of the order passed by the Hon'ble the Chief Justice of tagging the arbitration application with the writ petition and placing it before a Division Bench. Thus, his submission is that the writ petition pertains to jurisdiction of the learned Single Judge and hence, could not have been assigned to a Division Bench. He called upon this Bench to firstly decide the preliminary objection regarding a Division Bench hearing both the matters.

11. We have considered the submissions. It is unfortunate that valuable time of this Court (about 40 minutes) is wasted today by such frivolous submissions made by the petitioners across the bar. The writ petitioners themselves moved a Division Bench of this Court on 11th July 2017. On 12th July 2017, when Writ Petition was placed before the Division Bench, on the prayer made by the petitioners, the Division Bench granted ad-interim relief in terms of prayer clause (d) of the petition which is in force till today. Thereafter, on 11th December 2017, when the petition was called out before a Division Bench not the petitioners or the respondent but the Division Bench had a doubt whether the writ petition pertained to assignment of the said Division Bench. Thereafter, on 20th September 2017, the Master and Assistant Prothonotary (Judicial) submitted a note recording that the petition pertains to assignment of a Division Bench. Thereafter, on 17th November 2017, 11th December 2017, 10th January 2018, 12th March 2018, 17th April 2018, 11th June 2018, 15th June 2018 and 9th July 2018, the writ petition was repeatedly placed before a Division Bench of this Court when the petitioners did not raise the said contention. In fact, some of the orders show that ad-interim relief granted in Writ Petition No.2470 of 2017 in favour of the petitioners was extended by a Division Bench. Not only that the petitioners themselves moved the Division Bench on 11th July 2017 and did not raise objection to the Division Bench hearing both the writ petition and arbitration application, on a praecipe submitted by the advocate for the petitioners (applicant in arbitration application) for clubbing arbitration application along with the writ petition that the Hon'ble the Chief Justice passed the order on 9th August 2017 directing that the arbitration application should be tagged with the writ petition which shall be placed before a Division Bench. In fact, we have quoted the prayer made in the praecipe filed by the advocate for the petitioners wherein specific request was made by the petitioners for clubbing arbitration application along with the writ petition to be heard before a Division Bench specifically named in the said praecipe. In fact, the order dated 9th July 2018 which we have quoted above shows that by consent, the parties agreed to move the Hon'ble the Acting Chief Justice for assigning Writ Petition No.2041 of 2017 to this Bench for hearing the same along with Writ Petition No.2470 of 2017. We may also note that on 20th December 2017, the Master and Assistant Prothonotary (Judicial) has submitted a note to the Court with reference to the order dated 11th December 2017 passed by a Division Bench of this Court (Coram : Shantanu Kemkar and R.G. Ketkar, JJ.) by which office was directed to examine the matter and place it before an appropriate Bench. The note dated 20th December 2017 submitted by the Master and Assistant Prothonotary (Judicial) records that the petition is required to be placed before the Division Bench presided over by the Hon'ble Shri Justice S.C. Dharmadhikari as per the extant assignment of judicial work.

12. Thus, the scenario which emerges is that the petitioners moved writ petition filed by them before a Division Bench in July 2017 when the Division Bench passed an order granting ad-interim relief in terms of prayer clause (d) in favour of the petitioners as a result of which the proceedings for eviction remained stayed. As noted earlier, when it suited the petitioners, they never raised an objection to the Division Bench hearing their own writ petition. On the contrary, as noted earlier, at the instance of the writ petitioners, a praecipe was moved before the Hon'ble the Chief Justice making a specific prayer for tagging arbitration application filed by them along with Writ Petition No.2470 of 2017 which was pending before the Division Bench specifically named in the praecipe. On the basis of the said praecipe, way back on 9th August 2017, the Hon'ble the Chief Justice passed an order tagging arbitration application along with writ petition to be placed before the Division Bench taking up writ petitions. Thereafter, the arbitration application was repeatedly listed before the Division Bench along with writ petition to which the petitioners never raised any objection. Now today, without challenging the order dated 9th August 2017 of the Hon'ble Chief Justice, the petitioners have contended that the said order is nullity. According to us, making such submissions amounts to nothing but abuse of process of law. The petitioners want to indulge in forum hunting. While we are dictating this order, the learned counsel appearing for the petitioners states that in his written submissions which we have quoted above, a portion be added that if this Court rules against the petitioners, the petitioners are willing to argue before this Bench.

13. When we noticed that such frivolous submissions were being made on behalf of the petitioners, we called upon the representative of the first petitioner in the writ petition Dr. Suni Augustine, General Manager to step into witness box. We informed him that if such submissions are made, the petitioners may be subjected to heavy costs. However, Dr. Suni Augustine, General Manager, Legal of the first petitioner in the writ petition stated that the first petitioner also wants the learned counsel to make such submissions. On the prayer made by petitioners, the Hon'ble the Chief Justice way back on 9th August 2017 directed that arbitration application filed by the petitioners should be heard by a Division Bench along with writ petition filed by the petitioners. The petitioners have nev

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er challenged the order of the Hon'ble the Chief justice which is passed in her capacity as the master of roster and now after gap of 11 months, it is tried to be submitted that the order of the Hon'ble the Chief Justice is nullity and that also without challenging the said order by filing proper proceedings. 14. Such conduct on the part of a litigant has to be deprecated. This Court has a heavy board of admission matters. This Court was forced to devote more than 40 minutes for dealing with such frivolous submissions made across the bar. Such tendency of making frivolous submissions and wasting the time of the Court is on rise. Such tendency should curbed by coming down on such litigants with heavy hands. Now a time has come to give a signal to such litigants loudly and clearly. The Petitioners are not illiterate litigants. They are running a five star hotel near the International Airport at Mumbai. Their Manager who is present today who was made aware of the consequences stated that the petitioners want their counsel to make such submissions. Therefore, we propose to impose heavy costs on the petitioners consistent with their status and make payment of costs as a condition precedent for hearing the petitions on merits. Earlier, the petitioner had engaged two senior Advocates. Considering the reasons which we have recorded above, we impose costs of Rs. 5 Lakhs on the petitioners which shall be deposited in this Court within a period of four weeks from the date on which this order is uploaded. Considering the conduct of the petitioners, we make it clear that ad-interim relief which was granted earlier stands vacated. We also make it clear that the Division bench will hear the petitioners in these matters only after the aforesaid costs amount is deposited by the petitioners. At this stage, the learned counsel appearing for the petitioners requested the Court to make a reference to the said Act of 1994 because he wants to make some submissions on merits. For the reasons which we have recorded earlier, today, we decline to hear the submissions made by the learned counsel appearing for the petitioners on merits of the matters.
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