The Bombay High Court has held that statutory provisions ousting judicial and arbitral jurisdiction under Chapter VA of the Airports Authority of India Act, 1994 cannot be waived by party consent, even where parties have agreed to arbitration. The Court restored pending Section 9 petitions, emphasizing that arbitrability must be assessed against mandatory statutory bars, not merely contractual agreements.
Background & Facts
The Dispute
The disputes arose from termination notices issued by the Airports Authority of India (AAI) to licensees operating commercial establishments on airport premises. The licensees, including Satyavan Vishnu Agate (sole proprietor of M/s Vision Enterprises), Sanjay Surendrakumar Raval, and Zen Media LLP, filed Section 9 petitions under the Arbitration and Conciliation Act, 1996 seeking interim relief to maintain the status quo pending arbitration. AAI initially consented to the reference of these disputes to arbitration and agreed to keep termination notices in abeyance.
Key Facts
- AAI issued stop-work notices to all respondents on 31.12.2024, citing administrative grounds.
- Termination of the License Agreements was effected on 22.03.2025 without issuance of show-cause notices.
- AAI contended that the License Agreements were granted without proper internal authorization and were therefore illegal.
- The License Agreements contained arbitration clauses under Clause 27.1, but Clause 27.10 explicitly excluded disputes governed by Chapter VA of the AAI Act, 1994.
- AAI had initially requested separate arbitrators for each licensee, indicating awareness of the distinct nature of each dispute.
- The AAI Act, 1994, Chapter VA, defines "unauthorised occupation" as continuation of occupation after authority has been determined for any reason (Section 28A(f)).
- Section 28M of the AAI Act bars any court or authority from granting injunctions against actions taken by the Eviction Officer under Chapter VA.
Procedural History
- 31.12.2024: AAI issued stop-work notices to all respondents.
- 22.03.2025: Termination of License Agreements communicated without show-cause notices.
- March 2025: Section 9 petitions filed before the Bombay High Court seeking interim relief.
- March - April 2025: AAI consented to arbitration and the Court appointed Sole Arbitrators in each matter.
- April 9, 2025: Sole Arbitrator in Commercial Arbitration Petition No. 219 of 2025 resigned.
- April 16, 2025: Review Petitions filed by AAI challenging the validity of consent to arbitration.
- April 16, 2026: Judgment delivered by Justice Somasekhar Sundaresan.
The Parties' Positions
For AAI: Argued that Chapter VA of the AAI Act creates an exclusive statutory regime for eviction of unauthorized occupants from airport premises. Section 28M ousts all judicial and arbitral jurisdiction. Consent given by the Additional Solicitor General cannot override this statutory bar. The arbitration clause in Clause 27.1 is void to the extent it conflicts with Section 28M.
For Respondents: Contended that the core dispute is commercial in nature - breach of license terms, not eviction. Characterizing every dispute involving airport premises as eviction proceedings would frustrate valid arbitration agreements. AAI’s prior conduct - consenting to arbitration and requesting separate arbitrators - estops it from now challenging jurisdiction. The resignation of the arbitrator is a procedural issue, not a jurisdictional one.
Relief Sought
AAI sought review and recall of orders dated March 25, 2025, March 26, 2025, April 9, 2025, and April 24, 2025, which had appointed arbitrators and maintained status quo. AAI requested that the Section 9 petitions be dismissed on grounds of non-arbitrability. Respondents sought continuation of the interim orders and substitution of the arbitrator.
The Legal Issue
Can parties, through consent, confer jurisdiction on an arbitral tribunal to adjudicate disputes that are expressly excluded from judicial and arbitral review by mandatory provisions of the Airports Authority of India Act, 1994, specifically Section 28M read with Section 28A(f)?
Arguments Presented
For the Petitioner
AAI relied on Section 28M of the AAI Act, which declares all orders of the Eviction Officer as final and non-justiciable, and bars any court from granting injunctions against actions taken under Chapter VA. It argued that the term "unauthorised occupation" under Section 28A(f) encompasses any occupation following termination of license, regardless of the nature of the underlying agreement. Consent given by the Additional Solicitor General, even if recorded, cannot override a statutory prohibition. The arbitration clause in Clause 27.1 is rendered void by Clause 27.10, which explicitly excludes disputes governed by Chapter VA.
For the Respondent
The respondents argued that the dispute is not about eviction per se but about breach of commercial license terms. They contended that AAI’s conduct - consenting to arbitration, requesting separate arbitrators, and agreeing to maintain status quo - constitutes acquiescence. The resignation of the arbitrator is a procedural defect, not a jurisdictional one, and should be remedied under Section 15 of the Arbitration Act. They warned that allowing AAI to withdraw consent after the fact would undermine the sanctity of arbitration agreements and encourage forum shopping.
The Court's Analysis
The Court acknowledged that while parties may consent to arbitration, such consent cannot override statutory bars to arbitrability. It emphasized that Section 28M of the AAI Act is a clear legislative exclusion of judicial and arbitral jurisdiction over eviction matters. The Court noted that the term "unauthorised occupation" under Section 28A(f) is broad and includes occupation after termination of authority, even if initially lawful.
"The authorisation for occupation may have been under a commercial contract, but if that underlying authority to occupy premises has been determined, one would indeed have to consider if Section 28M of the AAI Act would be attracted."
The Court distinguished this from Section 11 proceedings, where courts are limited to examining the existence of an arbitration agreement. Here, the arbitration was formed by consent under Section 9, where the court retains jurisdiction to assess arbitrability. Since the Arbitral Tribunal had resigned and no tribunal existed to rule on jurisdiction under Section 16, the Court held that the issue of statutory ouster could not be deferred.
The Court further observed that AAI’s prior conduct - agreeing to arbitration while simultaneously challenging the legality of the licenses - created an inconsistency that could not be ignored. The Court declined to rule on whether the disputes were arbitrable, but held that the consent order was entered without proper consideration of the statutory bar, constituting an apparent error of law.
The Verdict
The Review Petitions are allowed. The Section 9 petitions filed under the Arbitration and Conciliation Act, 1996 are restored. All contentions regarding jurisdiction and arbitrability are left open for fresh consideration by the appropriate Bench of the Bombay High Court exercising Section 9 jurisdiction. The status quo as of April 16, 2026, shall continue until the restored petitions are heard. AAI is restrained from acting on the termination notices until the Section 9 Court passes an order.
What This Means For Similar Cases
Statutory Ouster Trumps Contractual Consent
- Practitioners must assess whether a dispute falls under any statutory regime that explicitly ousts arbitration or court jurisdiction before filing Section 9 petitions.
- Consent to arbitration cannot cure a jurisdictional defect arising from mandatory statutory provisions like Section 28M of the AAI Act.
- Courts will not permit parties to circumvent exclusive statutory forums through private agreement.
Section 9 Jurisdiction Requires Independent Assessment
- Unlike Section 11, where courts are confined to examining the existence of an arbitration agreement, Section 9 courts must independently evaluate arbitrability when jurisdictional objections are raised.
- Where no arbitral tribunal exists to rule on jurisdiction under Section 16, the Section 9 court retains the duty to examine statutory bars.
- Parties cannot rely on prior consent to arbitration as a shield against statutory non-arbitrability.
Conduct of Parties May Influence but Not Override Law
- While party conduct (e.g., consent, delay, inconsistent positions) may inform judicial discretion, it cannot override clear statutory prohibitions.
- AAI’s prior agreement to arbitration does not estop it from raising jurisdictional objections, but may affect costs or credibility.
- Practitioners should document and preserve all communications regarding jurisdictional objections to avoid claims of waiver.
