Airport Authority of India v. Mumbai International Airport Ltd.,

NAVIN CHAWLA, J FEBRUARY 15, 2019 RN/vp

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + O.M.P. (COMM) 32/2019 & IA 978/2019 Reserved on: 22.01.2019 Date of decision : 15.02.2019 AIRPORT AUTHORITY OF INDIA ..... Petitioner Through Mr.Tushar Mehta, Solicitor General with Mr.Raghavender Shankar, Mr.Karan Lahiri, Ms.Kanu Agarwal and Mr.Adit Khorana, Advs. versus MUMBAI INTERNATIONAL AIRPORT LTD. ..... Respondent Through Mr.P.Chidambaram Sr.Adv. with Mr.Ankur Chawla, Ms.Kanika Singh, Mr.R.K. Mohit Gupta, Ms.Pallavi Langar and Ms.Palak Vashist, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition has been filed by the petitioner under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act") challenging the Arbitral Award dated 23.09.2018 passed unanimously by a three member Arbitral Tribunal. 2. The dispute between the parties, though required reference of the Arbitral Tribunal and of this Court to various documents exchanged between the parties and meetings held by them for a period ranging almost 10 years, lies in a very narrow compass. The dispute is whether Page 2 land ad measuring 16860 sq. mtrs. (approx. 4.17 acres) being the "F" Block of the NAD Colony located near New Engineering Complex (NEC) Gate, Bamanwada Village, Taluka Andheri, Mumbai Suburban District (hereinafter referred to as the "disputed land") was the "Demised Premises" in terms of Schedule 25 of the Operation, Management and Development Agreement dated 04.04.2006 (hereinafter referred to as "OMDA") executed between the parties or was a "Carved Out Assets". 3. Chapter I (Definitions and Interpretation) of OMDA defines "Carved Out Assets" to mean the assets set out in Schedule 27 thereof. Schedule 27 of OMDA reads as under: "SCHEDULE 27 CARVED OUT ASSETS Details of the Carved out Assets Mumbai Airport S.No. Assets / Leases Area of Land (Sq. Metres) 1. New ATC Tower 12,045.50 2. The NAD staff colony of AAI 2,02,919.44 3. Lease of land to Hotel Leela Venture 27,000.00 4. All retail fuel outlets which are outside the airport operational boundary 2,032.61 5. Convention Centre 64,749.60 Page 3 4. Schedule 25 annexed a map demarcating the "Demised Premises". The map also identified the "Carved Out Assets". It is undisputed that the disputed land was not shown in the map as a "Carved Out Assets". 5. On 26.04.2006, the parties entered into a Lease Deed to effectuate and in accordance with the OMDA. Clause 2.1.1 of the Lease Deed excludes the "Carved Out Assets" from the "Demised Premises" and reads as under: "2.1.1 In consideration of the Lease Rental, OMDA and the covenants and warranties on the part of the Lessee therein and herein, the Lessor, in accordance with the AAI Act and the terms and conditions set forth herein, hereby, demise to the Lessee, commencing from the Effective Date, all the land (along with any buildings, constructions or immovable assets, if any, thereon) which is described, delineated and shown in the Schedule 1 hereto, other than (i) any lands (along with any buildings, constructions or immovable assets, if any, thereon) granted to any third party under any Existing Lease(s) constituting the Airport on the date hereof; and (ii) any and all of the Carved Out Assets and the underlying land together with any buildings, constructions or immovable assets thereon, on an "as is where basis" together with all Encumbrances thereto, (hereinafter "Demised Premises") to hold the said Demised Premises, together with all and singular rights, liberties, privileges, easements and appurtenances whatsoever to the said Demised Premises, hereditaments or premises or any part thereof belonging to or in anyway appurtenant thereto or enjoyed therewith, for the duration of the Term for the sole purpose of the Project, and for such other purposes as are permitted under this Lease Deed." (Emphasis Supplied) Page 4 6. Schedule 1 referred to in the above Clause was in form of a map, which now showed the disputed land as a "Carved Out Assets". 7. The respondent c