REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2932 OF 2015
(Arising out of SLP (Civil) No.27062/2013
DELHI INTERNATIONAL AIRPORT LTD. ..Appellant
Versus
INTERNATIONAL LEASE FINANCE
CORPN. & OTHERS ..Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal has been filed against the impugned order dated
8.5.2013 passed by the High Court of Delhi in Writ Petition (Civil)
No.7767/2012, wherein the Division Bench of the High Court allowed the writ
petition filed by the respondent No.1. The issue falling for
consideration is whether minutes of meeting can override statutory
regulations.
3. The appellant is Delhi International Airport Limited, a joint
venture and public partnership between GMR companies, Ministry of Civil
Aviation, Fraport Germany and Eraman Malaysia. Appellant has been granted
aerodrome licence by Director General Civil Aviation (DGCA) on 1.5.2008 and
is a competent authority with respect to Delhi Airport responsible for
upgradation, maintenance and operation of Delhi Airport. Appellant has
been conferred power under Section 22(i)(a) of the Airport Authority of
India Act, 1994 (short for 'AAI Act') to charge fees, rent etc. for the
landing, housing or parking of aircraft. Respondent No.1 is a leasing
company incorporated under laws of California, U.S.A, engaged in the
business of leasing of aircrafts engines and related equipment.
4. Kingfisher Airlines (KAL) had been operating commercial
airlines and unable to pay dues of various authorities. The scheduled
airline licence of the 8th respondent-Kingfisher Airlines (KAL) was
suspended due to non-payment of the parking, landing and housing charges in
respect of the aircraft bearing registration No.VT-KFT which was previously
registered to Kingfisher Airlines Limited (KAL) and leased to KAL by
respondent No.1 were detained at Delhi Airport and subsequently got de-
registered on 27.12.2012. Section 22 of the AAI Act provides for levy of
landing, housing and parking charges at the Airport. These charges
(amounting to a total of Rs.10,50,51,052.77 for all eight detained
aircraft) and other statutory charges and dues (amounting to
Rs.12,64,08,706.57 for all eight detained aircraft) attach to the aircraft
and have to be discharged by the person in control of the aircraft is under
Regulation 10. Other aircrafts of KAL lying at various airports also got
detained at different airports due to non-payment of charges and
subsequently deregistered.
5. Assailing the order of detention of the aircrafts belonging to
respondent No.1 by Delhi International Airport Limited (short for 'DIAL'),
Airport Authority of India (short for 'AAI') and Mumbai International
Airport Limited (short for 'MIAL') and challenging vires Regulation 10 of
the Airport Authority of India (Management of Airports) Regulations, 2003,
respondent No.1 filed writ petition before the Delhi High Court.
6. During pendency of the writ petition, on 26.3.2013 a meeting
was held regarding release of the aircrafts of respondent No.8 by the
airport operators. The participants in the meeting included
representatives of (a) Ministry of Civil Aviation (MCA), (b) Central Board
of Excise & Customs (CBEC), (c) Director General of Civil Aviation
(DGCA), (d) Airports Authority of India (AAI), (e) Delhi International
Airport Pvt. Ltd. (DIAL), (f) Mumbai International Airport Pvt. Ltd.
(MIAL). After detailed discussions various decisions were made. It was
inter- alia decided that:-
"(i) DGCA shall, henceforth, seek views of concerned airport
operators prior to deregistration of remaining KFA aircraft;
(ii) CBEC and DGCA shall reconcile list of remaining KFA aircraft
registered with DGCA so as to confirm whether these aircrafts are purely
under financial/operating lease or some of them are jointly owned by
Lessor and KFA;
(iii) The concerned airport operators shall release all the de-
registered aircraft to the respective owners/lessors immediately so that
these aircrafts can fly out of the country. They are at liberty to collect
parking charges from the owners/lessors from the date of de-registration.
In case any of these deregistered aircrafts are subject matter of any court
case between the owners/lessors and the airport operator, then the airport
would take action as per the decision of the Court."
7. High Court of Delhi vide impugned order dated 8.5.2013 directed
all the airports to release the aircrafts in terms of the above decision
taken in the meeting held on 26.3.2013 on payment of parking charges up to
13.5.2013. Being aggrieved, the appellant-DIAL has preferred this appeal
by way of special leave.
8. Mr. Gopal Jain, learned Senior Counsel appearing for the
appellant submitted that the minutes of the meeting is in the nature of an
executive decision and it curtails their statutory power to detain the
aircrafts for non-payment of fees and said minutes of meeting cannot
override Regulation 10 and other statutory regulations. It was submitted
that the minutes of the meeting dated 26.3.2013 is not a general or a
special order passed by the Central Government and does not have statutory
force. Placing reliance upon Shanti Sports Club & Anr. vs. Union of India
& Ors.[1] and Sant Ram Sharma vs. State of Rajasthan & Ors.[2], it was
submitted that the government cannot amend or supersede statutory rules by
administrative instructions and the High Court erred in directing release
of the aircrafts in terms of the decision taken in the meeting held on
26.3.2013.
9. We have heard Mr. K. Radhakrishnan, learned Senior Counsel
appearing for Union of India and Mr. Neeraj Sharma, learned counsel
appearing for respondent No.1. We have carefully considered the rival
contentions and perused the impugned order and material on record.
10. Section 22 (i)(a) of the AAI Act confers powers to charge fees, rent
etc. for the landing, housing or parking of aircrafts. These charges for
landing, housing and parking are fixed by Airport Economic Regulatory
Authority (short for 'AERA') during the tariff determination procedure
undertaken after extensive consultation with the stake holders. Section
42(2)(o) of the AAI Act empowers the authority to make regulations not
inconsistent with the AAI Act and the Rules made thereunder generally for
the efficient and proper management of the airport or civil enclave. It
is relevant to refer to Regulation 42 which reads as under:-
"42.(1) The authority may make Regulations not inconsistent with this Act
and the rules made thereunder to provide for all matters for which
provision is necessary or expedient for the purpose of giving effect to the
provisions of this Act.
(2) Without prejudice to the generality of the foregoing power, such
Regulations may provide for -.....
(o) generally for the efficient and proper management of the airport or
civil enclave."
11. In exercise of the powers under Regulation 42 (2)(o), AAI
notified the Airport Authority of India (Management of Airports)
Regulations, 2003 (short for 'AAI Regulations'). In this appeal, we are
concerned with Regulation 10 which reads as under:-
"10. Unless otherwise provided under the Act or by a general or special
order in writing by the Central Government, the use of the movement area of
Airport, by an aircraft shall be subject to payment of such landing,
parking or housing fees or charges as are levied by the Authority from time
to time. In the event of non-payment of the requisite fee or charges, the
Competent Authority shall have a right to detain or stop departure of the
aircraft till the fees or charges are paid to Authority, which may include
the current and accumulated dues."
12. 'Competent Authority' is defined in Regulation 3(8) which reads as
under:-
"8. 'Competent Authority' means in relation to exercise of any power of
the Authority, the Chairperson, and any member authorized by the
Chairperson, Airport Director or Controller of Aerodrome or Incharge of any
Airport or civil enclave or any other officer specified by the Chairperson
in that behalf."
The appellant is the competent authority with respect to the Delhi Airport
having been granted aerodrome licence from DGCA on 1.5.2008. Section 42
(2)(o) read with Section 22 of the AAI Act and Regulation 10 is a
complete code with regard to the right of the airport operator to levy
and ensure collection of dues including the right to detain or stop
departure of the aircraft till the fees or charges are paid irrespective of
the ownership of the aircraft. The charges and dues are attached to the
aircraft. According to the appellant-DIAL, it has the right to detain or
stop departure of aircrafts till the fees or charges in this case the
landing, housing and parking charges are determined by AERA are paid and
minutes of the meeting dated 26.3.2013 cannot override regulations.
13. Under Regulation 10, competent authority has the authority to detain
the aircraft or stop departure of the aircraft "unless otherwise provided
by the Act or by general or special order in writing by the Central
Government". According to the appellant, under the Regulation, the
appellant has the right to detain or stop an aircraft and minutes of the
meeting dated 26.3.2013 is not a general or special order passed by the
Central Government and it cannot override the powers of the Airport
Authority of India under Regulation 10.
14. According to Union of India, Government has the sole prerogative to
take a decision by virtue of Section 40 of the AAI Act and in the present
case minutes of the meeting dated 26.03.2013 is the decision of the Central
Government which is in accordance with law.
15. The High Court has mainly relied upon minutes of the meeting dated
26.3.2013. It has neither gone into the question whether the minutes of
the meeting, where decision was taken by the Central Government in
accordance with the provision of Section 40 of the AAI Act nor it had
examined the vires of Regulation 10. The High Court had only referred to
the minutes of the meeting and disposed of the writ petition, recording the
statement of the learned counsel for the petitioner that the directions as
per the minutes of the meeting are complied with. It has to be seen
whether the minutes of the meeting dated 26.3.2013 would amount to a
general order or special order passed by the Central Government and whether
it would override the powers of the Airport Authority of India under
Regulation 10.
16. Article 77 of the Constitution of India deals with the conduct of
business of Government of India while Article 166 of the Constitution of
India deals with the conduct of business of the Government of the
State. All executive actions of the Government of India and the
Government of a State are required to be taken in the name of the
President or the Governor of the concerned State as the case may be.
17. Clause (1) of Article 77 of the Constitution of India provides that
whenever executive action is to be taken by way of an order or instrument,
it shall be expressed to be taken in the name of the President in whom the
executive power of the Union is vested. Clause (2) of Article 77 of the
Constitution of India provides that the validity of an order or instrument
made or executed in the name of the President, and authenticated in the
manner specified in the rules made by the President, shall not be called in
question on the ground that it is not an order or instrument made or
executed by the President.
18. Under clause (3) of Article 77 of the Constitution of India, the
President is to make rules for the more convenient transaction of
government business and for the allocation of the same amongst ministers.
A similar provision occurs in Article 166(3) empowering the Governors to
make rules for the conduct of government business in the States. In all
cases in which the President or the Governor exercises his functions
conferred on him by or under this Constitution with the aid and advice of
his Council of Ministers, he does so by making rules for more convenient
transaction of business and for allocation among ministers of the said
business in accordance with Articles 77(3) and 166(3) respectively.
Further, the rules of business and allocation among ministers is relatable
to Articles 53(1) and 154(1) that the executive power shall be exercised by
the President or the Governor directly or through the subordinate officers.
The President or the Governor means the President or the Governor aided
and advised by the Council of Ministers. Neither Article 77(3) nor Article
166(3) provides for any delegation of power.
19. Under the Government of India (Transaction of Business) Rules, 1961,
the government business is divided amongst the ministers and specific
functions are reallocated to different ministries. Each ministry can
therefore issue orders or notifications in respect of the functions which
have been allocated to it under the Rules of Business. We may usefully
refer to Government of India (Transaction of Business) Rules, 1961, as
lastly amended by amendment dated 1.12.2014 made by the President in
exercise of the provisions of sub-clause (3) of Article 77 of the
Constitution of India for more convenient transaction of the business of
the Government of India. Rule 3 provides that subject to certain
exceptions made thereunder, all business allotted to a department under
the Government of India (Allocation of Business) Rules, 1961 shall be
disposed of by or under the general or special directions of the Minister
in Charge. Further Rule 4 provides for Inter-Departmental Consultations.
Rule 4(1) reads as under:-
"4 Inter-Departmental Consultations.-(1) When the subject of a case
concerns more than one department, no decision be taken or order issued
until all such departments have concurred, or, failing such concurrence, a
decision thereon has been taken by or under the authority of the Cabinet."
Sub-clause (2) of Rule 4 which is very much relevant in instant case can be
reproduced here for convenience:
"Unless the case is fully covered by powered to sanction expenditure or to
appropriate or re-appropriate funds, conferred by any general or special
orders made by the Ministry of Finance, no department shall, without the
previous concurrence of the Ministry of Finance, issue any orders which
may-
involve any abandonment of revenue or involve any expenditure for which no
provision has been made in the appropriation act;
...
..
Otherwise have a financial bearing whether involving expenditure or not;"
20. In State of Sikkim vs. Dorjee Tshering Bhutia & Ors.[3], it is
observed as under:-
"14....The government business is conducted under Article 166(3) of the
Constitution in accordance with the Rules of Business made by the Governor.
Under the said Rules the government business is divided amongst the
ministers and specific functions are allocated to different ministries.
Each ministry can, therefore, issue orders or notifications in respect of
the functions which have been allocated to it under the Rules of Business."
21. In Gulabrao Keshavrao Patil & Ors. vs. State of Gujarat & Ors.[4],
it is held as under:-
"14...It would, therefore, be clear that the decision of a Minister under
the Business Rules is not final or conclusive until the requirements in
terms of clauses (1) and (2) of Article 166 are complied with. Before the
action or the decision is expressed in the name of the Governor in the
manner prescribed under the Business Rules and communicated to the party
concerned it would always be [pic]open by necessary implication, to the
Chief Minister to send for the file and have it examined by himself and to
take a decision, though the subject was allotted to a particular Minister
for convenient transaction of the business of the Government. The subject,
though exclusively allotted to the Minister, by reason of the
responsibility of the Chief Minister to the Governor and accountability to
the people, has implied power to call for the file relating to a decision
taken by a Minister. The object of allotment of the subject to a Minister
is for the convenient transaction of the business at various levels through
designated officers...."
22. In terms of Rule 3 the alleged decision taken pursuant to meeting
dated 26.3.2013 should have been sanctioned by under the general or special
directions of the Minister in Charge. Since in this case, stakes of
different departments headed by different ministries are concerned, the
provision of Rule 4 would apply i.e. alleged decision should have been
taken by the concerned committee of the Cabinet. Since, the alleged
decision involves the financial bearing also, it should have all
concurrence of Finance Department also. Apparently alleged minutes of the
meeting purportedly stated to be an order in writing by Central Government
and later communicated to all concerned, are not disposed of in pursuance
of Rule 4 i.e. neither the decision was sanctified by Cabinet nor the
concurrence of Finance Department was taken.
23. At this stage, it is apposite to consider the ratio laid down in MRF
Limited vs. Manohar Parrikar & Ors.[5], wherein scope of Article 166 (3)
was under consideration and observing that Rules of Business framed under
Articles 166(3) and 77(3) are mandatory, this Court has held as under:-
"67.....In the case on hand, we are required to examine the contentions of
the appellants on this issue with reference to the Business Rules framed by
Governor of Goa under Article 166(3) of the Constitution of India.
68. Rule 7(2) of the Business Rules of the Government of Goa states, that,
a proposal which requires previous concurrence of the Finance Department
under the said Rule, but in which the Finance Department has not concurred,
may not be proceeded with, unless the Council of Ministers has taken a
decision to that effect. The wordings of this Rule are different from the
provisions of Rule 9 of the Business Rules of Maharashtra and have to be
read in context with the provisions of Rule 3 of the Business Rules of the
Government of Goa which states that the business of the Government shall be
transacted in accordance with the Business Rules. Under Rule 7(2) thereof,
the concurrence of the Finance Department is a condition precedent.
69. Likewise, Rule 6 of the Business Rules states, that, the Council of
Ministers shall be collectively responsible for all executive orders passed
by any Department in the name of the Governor or contract made in exercise
of the power conferred on the Governor or any other officer subordinate to
him in accordance with the Rules, whether such orders or contracts are
authorised by an individual Minister on a matter pertaining to the
Department under his charge or as the result of discussion at a meeting of
the Council of Ministers or otherwise. This Rule requires that an executive
order issued from any Department in the name of the Governor of the State
should be known to the Council of Ministers so as to fulfil the collective
responsibility of the Council of Ministers.
70. Further, Rule 7 of the Business Rules requires that no Department shall
without the concurrence of the Finance Department issue any order which may
involve any abandonment of revenue or involve expenditure for which no
provisions have been made in the Appropriation Act or involve any
[pic]grant of land or assignment of revenue or concession, grant, lease or
licence in respect of minerals or forest rights or rights to water, power
or any easement or privilege or otherwise have financial implications
whether involving expenditure or not.
71. From a combined reading of the provisions of Rules 7, 3 and 6 of the
Business Rules of the Government of Goa the conclusion would be
irresistible that any proposal which is likely to be converted into a
decision of the State Government involving expenditure or abandonment of
revenue for which there is no provision made in the Appropriation Act or an
issue which involves concession or otherwise has a financial implication on
the State is required to be processed only after the concurrence of the
Finance Department and cannot be finalised merely at the level of the
Minister-in-charge. The procedure or process does not stop at this. After
the concurrence of the Finance Department the proposal has to be placed
before the Council of Ministers and/or the Chief Minister and only after a
decision is taken in this regard that it will result in the decision of the
State Government. Therefore, the High Court has rightly rejected the
arguments of the appellants herein based on the judgment of the Full Bench
of the High Court.
72. The High Court has observed, that the Rules of Business are framed in
such a manner that the mandate of the provisions of Articles 154, 163 and
166 of the Constitution are fulfilled. Therefore, if it is held that the
non-compliance with these Rules does not vitiate the decisions taken by an
individual Minister concerned alone, the result would be disastrous. In a
democratic set-up the decision of the State Government must reflect the
collective wisdom of the Council of Ministers or at least that of the Chief
Minister who heads the Council. The fact that the decisions taken by the
Minister alone were acted upon by issuance of notification will not render
them decisions of the State Government even if the State Government chose
to remain silent for a sufficient period of time or the Secretary concerned
to the State Government did not take any action under Rule 46 of the
Business Rules. If every decision of an individual Minister taken in breach
of the Rules are treated to be those of the State Government within the
meaning of Article 154 of the Constitution, the result would be chaotic.
The Chief Minister would remain a mere figure head and every Minister will
be free to act on his own by keeping the Business Rules at bay. Further, it
would make it impossible to discharge the constitutional responsibility of
the Chief Minister of advising the Governor under Article 163. Therefore,
it is difficult to accept the contentions of the appellants that the
Business Rules are directory.
73. We also subscribe to and uphold the view of the High Court that
Business Rules 3, 6, 7 and 9 are mandatory and not directory and any
decision taken by any individual Minister in violation of them cannot be
termed as the decision of the State Government. We are fortified in our
view by several decisions of this Court". (emphasis added)
24. From a combined reading of Rules 3, 4, 4(2) and in the light of the
above decisions, the minutes of meeting which is to be converted as a
general or special order in writing by the Central Government involving the
abandonment of revenue or which has a financial implication on the Airports
Authority of India which is under the control of Civil Aviation Ministry,
it was required to proceed only after the concurrence of Finance
Department. It cannot be finalized merely at the level of
officers/representatives of Civil Aviation, Central Board of Excise and
Customs etc. After concurrence of the Finance Ministry, the minutes of
the meeting ought to have been placed before the concerned minister as per
the Rules of Business. Sanctification by the concerned ministry and the
concurrence of Finance Department was a mandatory condition in order to
hold the minutes of the meeting dated 26.3.2013 as "a general or special
order in writing by the Central Government". In the absence of any such
sanctification by the competent authority, in our view, mere minutes of the
meeting would not give any indefeasible right to the appellant.
25. According to the second respondent (Union of India), the meeting had
been convened in the backdrop of Cape Town Convention and Protocol i.e. the
Convention on International Interests in Mobile Equipment which provides
for the protection of the international interests in the aircrafts as
well and India became signatory to this Convention on 31.3.2008. Union
of India contends that in the meeting convened on 26.3.2013, it was decided
that in order to honour the international obligations of India and to
restore faith of international business community and investors, it was
necessary to allow the aircrafts to be returned to the owners-lessors.
Stand of UOI is that minutes of the meeting is the decision of the Central
Government is in accordance with law and has the force of law. Such a
decision involving financial implications must have been taken in terms of
the constitutional scheme i.e. upon compliance of requirement of Article 77
of the Constitution. There is nothing on record to show that the minutes
of the meeting had the concurrence of the Finance Department and was either
confirmed or approved by the concerned minister and such directions were
not shown to have been issued pursuant to any decision taken by a competent
authority in terms of Rules of Business framed under Article 77 of the
Constitution of India. The minutes of the meeting do not become a general
or special order in writing by the Central Government unless the same was
sanctified and acted upon by issuing an order in the name of the
President in the manner provided under Article 77 (2) of the Constitution.
26. It is the further contention that the Central Government has the
sole prerogative to take a decision to waive the right to detain the
aircraft and in the present case, DIAL has waived its right by
participating in the meeting and accepting the decision taken in the
meeting. It was also submitted that the Central Government is empowered to
take a unilateral decision in this regard and the appellant had not
objected to the decision being made and thus precluded from raising any
objections regarding the same. When the minutes of meeting were not
sanctioned by the competent authority and in accordance with the
mandatory requirement of Article 77(3) of the Constitution of India, the
same cannot be put against the appellant.
27. In Haridwar Singh vs. Bagun Sumbrui and Ors.[6], this Court was
dealing with the Business of Rules of the State of Bihar framed under
Article 166 (3) of the Constitution of India wherein this Court held
(pp.895-896 paras 14-16) as under:-
"14. Where a prescription relates to performance of a public duty and to
invalidate acts done in neglect of them would work serious general
inconvenience or injustice to persons who have no control over those
entrusted with the duty, such prescription is generally understood as mere
instruction for the guidance of those upon whom the duty is imposed (See
Dattatreya Moreshwer Pangarkar vs. State of Bombay, AIR 1952 SC 181).
15. Where however, a power or authority is conferred with a direction that
certain regulation or formality shall be complied with, it seems neither
unjust nor incorrect to exact a rigorous observance of it as essential to
the acquisition of the right or authority (see Maxwell, Interpretation of
Statutes, 6th Edn., pp.649-650).
16. .....Further, Rule 10(2) makes it clear that where prior consultation
with the Finance Department is required for a proposal, and the Department
on consultation, does not agree to the proposal, the Department originating
the proposal can take no further action on the proposal. The Cabinet alone
would be competent to take a decision. When we see that the disagreement of
the Finance Department with a proposal on consultation, deprives the
Department originating the proposal of the power to take further action on
it, the only conclusion possible is that prior consultation is an essential
prerequisite to the exercise of the power...."
28. Unless the minutes of meeting resulted in a final decision taken by
the competent authority in terms of Article 77(3) of the Constitution and
the decision so taken is communicated to the concerned person, the same was
not capable of being enforced by issuing a direction in a writ petition.
Without going into the merits of the matter, High Court was not right in
disposing of the matter in terms of the minutes of the meeting dated
26.3.2013 and the impugned order is liable to be set aside.
29. In the result, the impugned order is set aside and the appeal is
allowed. The appellant is at liberty to invoke the bank guarantee
furnished by the respondents. The appellant is also at liberty to recover
the arrears of landing, parking or housing fees charges from the concerned
respondents in accordance with law. No order as to costs.
.........................J.
(V.
Gopala Gowda)
........................J.
(R.
Banumathi)
New Delhi;
March 17, 2015
-----------------------
[1] [2] (2009) 15 SCC 705
[3] [4] (1968) 1 SCR 111
[5] [6] (1991) 4 SCC 243
[7] [8] (1996) 2 SCC 26
[9] [10] 2010 (11) SCC 374
[11] [12] (1973) 3 SCC 889
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2932 OF 2015
(Arising out of SLP (Civil) No.27062/2013
DELHI INTERNATIONAL AIRPORT LTD. ..Appellant
Versus
INTERNATIONAL LEASE FINANCE
CORPN. & OTHERS ..Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal has been filed against the impugned order dated
8.5.2013 passed by the High Court of Delhi in Writ Petition (Civil)
No.7767/2012, wherein the Division Bench of the High Court allowed the writ
petition filed by the respondent No.1. The issue falling for
consideration is whether minutes of meeting can override statutory
regulations.
3. The appellant is Delhi International Airport Limited, a joint
venture and public partnership between GMR companies, Ministry of Civil
Aviation, Fraport Germany and Eraman Malaysia. Appellant has been granted
aerodrome licence by Director General Civil Aviation (DGCA) on 1.5.2008 and
is a competent authority with respect to Delhi Airport responsible for
upgradation, maintenance and operation of Delhi Airport. Appellant has
been conferred power under Section 22(i)(a) of the Airport Authority of
India Act, 1994 (short for 'AAI Act') to charge fees, rent etc. for the
landing, housing or parking of aircraft. Respondent No.1 is a leasing
company incorporated under laws of California, U.S.A, engaged in the
business of leasing of aircrafts engines and related equipment.
4. Kingfisher Airlines (KAL) had been operating commercial
airlines and unable to pay dues of various authorities. The scheduled
airline licence of the 8th respondent-Kingfisher Airlines (KAL) was
suspended due to non-payment of the parking, landing and housing charges in
respect of the aircraft bearing registration No.VT-KFT which was previously
registered to Kingfisher Airlines Limited (KAL) and leased to KAL by
respondent No.1 were detained at Delhi Airport and subsequently got de-
registered on 27.12.2012. Section 22 of the AAI Act provides for levy of
landing, housing and parking charges at the Airport. These charges
(amounting to a total of Rs.10,50,51,052.77 for all eight detained
aircraft) and other statutory charges and dues (amounting to
Rs.12,64,08,706.57 for all eight detained aircraft) attach to the aircraft
and have to be discharged by the person in control of the aircraft is under
Regulation 10. Other aircrafts of KAL lying at various airports also got
detained at different airports due to non-payment of charges and
subsequently deregistered.
5. Assailing the order of detention of the aircrafts belonging to
respondent No.1 by Delhi International Airport Limited (short for 'DIAL'),
Airport Authority of India (short for 'AAI') and Mumbai International
Airport Limited (short for 'MIAL') and challenging vires Regulation 10 of
the Airport Authority of India (Management of Airports) Regulations, 2003,
respondent No.1 filed writ petition before the Delhi High Court.
6. During pendency of the writ petition, on 26.3.2013 a meeting
was held regarding release of the aircrafts of respondent No.8 by the
airport operators. The participants in the meeting included
representatives of (a) Ministry of Civil Aviation (MCA), (b) Central Board
of Excise & Customs (CBEC), (c) Director General of Civil Aviation
(DGCA), (d) Airports Authority of India (AAI), (e) Delhi International
Airport Pvt. Ltd. (DIAL), (f) Mumbai International Airport Pvt. Ltd.
(MIAL). After detailed discussions various decisions were made. It was
inter- alia decided that:-
"(i) DGCA shall, henceforth, seek views of concerned airport
operators prior to deregistration of remaining KFA aircraft;
(ii) CBEC and DGCA shall reconcile list of remaining KFA aircraft
registered with DGCA so as to confirm whether these aircrafts are purely
under financial/operating lease or some of them are jointly owned by
Lessor and KFA;
(iii) The concerned airport operators shall release all the de-
registered aircraft to the respective owners/lessors immediately so that
these aircrafts can fly out of the country. They are at liberty to collect
parking charges from the owners/lessors from the date of de-registration.
In case any of these deregistered aircrafts are subject matter of any court
case between the owners/lessors and the airport operator, then the airport
would take action as per the decision of the Court."
7. High Court of Delhi vide impugned order dated 8.5.2013 directed
all the airports to release the aircrafts in terms of the above decision
taken in the meeting held on 26.3.2013 on payment of parking charges up to
13.5.2013. Being aggrieved, the appellant-DIAL has preferred this appeal
by way of special leave.
8. Mr. Gopal Jain, learned Senior Counsel appearing for the
appellant submitted that the minutes of the meeting is in the nature of an
executive decision and it curtails their statutory power to detain the
aircrafts for non-payment of fees and said minutes of meeting cannot
override Regulation 10 and other statutory regulations. It was submitted
that the minutes of the meeting dated 26.3.2013 is not a general or a
special order passed by the Central Government and does not have statutory
force. Placing reliance upon Shanti Sports Club & Anr. vs. Union of India
& Ors.[1] and Sant Ram Sharma vs. State of Rajasthan & Ors.[2], it was
submitted that the government cannot amend or supersede statutory rules by
administrative instructions and the High Court erred in directing release
of the aircrafts in terms of the decision taken in the meeting held on
26.3.2013.
9. We have heard Mr. K. Radhakrishnan, learned Senior Counsel
appearing for Union of India and Mr. Neeraj Sharma, learned counsel
appearing for respondent No.1. We have carefully considered the rival
contentions and perused the impugned order and material on record.
10. Section 22 (i)(a) of the AAI Act confers powers to charge fees, rent
etc. for the landing, housing or parking of aircrafts. These charges for
landing, housing and parking are fixed by Airport Economic Regulatory
Authority (short for 'AERA') during the tariff determination procedure
undertaken after extensive consultation with the stake holders. Section
42(2)(o) of the AAI Act empowers the authority to make regulations not
inconsistent with the AAI Act and the Rules made thereunder generally for
the efficient and proper management of the airport or civil enclave. It
is relevant to refer to Regulation 42 which reads as under:-
"42.(1) The authority may make Regulations not inconsistent with this Act
and the rules made thereunder to provide for all matters for which
provision is necessary or expedient for the purpose of giving effect to the
provisions of this Act.
(2) Without prejudice to the generality of the foregoing power, such
Regulations may provide for -.....
(o) generally for the efficient and proper management of the airport or
civil enclave."
11. In exercise of the powers under Regulation 42 (2)(o), AAI
notified the Airport Authority of India (Management of Airports)
Regulations, 2003 (short for 'AAI Regulations'). In this appeal, we are
concerned with Regulation 10 which reads as under:-
"10. Unless otherwise provided under the Act or by a general or special
order in writing by the Central Government, the use of the movement area of
Airport, by an aircraft shall be subject to payment of such landing,
parking or housing fees or charges as are levied by the Authority from time
to time. In the event of non-payment of the requisite fee or charges, the
Competent Authority shall have a right to detain or stop departure of the
aircraft till the fees or charges are paid to Authority, which may include
the current and accumulated dues."
12. 'Competent Authority' is defined in Regulation 3(8) which reads as
under:-
"8. 'Competent Authority' means in relation to exercise of any power of
the Authority, the Chairperson, and any member authorized by the
Chairperson, Airport Director or Controller of Aerodrome or Incharge of any
Airport or civil enclave or any other officer specified by the Chairperson
in that behalf."
The appellant is the competent authority with respect to the Delhi Airport
having been granted aerodrome licence from DGCA on 1.5.2008. Section 42
(2)(o) read with Section 22 of the AAI Act and Regulation 10 is a
complete code with regard to the right of the airport operator to levy
and ensure collection of dues including the right to detain or stop
departure of the aircraft till the fees or charges are paid irrespective of
the ownership of the aircraft. The charges and dues are attached to the
aircraft. According to the appellant-DIAL, it has the right to detain or
stop departure of aircrafts till the fees or charges in this case the
landing, housing and parking charges are determined by AERA are paid and
minutes of the meeting dated 26.3.2013 cannot override regulations.
13. Under Regulation 10, competent authority has the authority to detain
the aircraft or stop departure of the aircraft "unless otherwise provided
by the Act or by general or special order in writing by the Central
Government". According to the appellant, under the Regulation, the
appellant has the right to detain or stop an aircraft and minutes of the
meeting dated 26.3.2013 is not a general or special order passed by the
Central Government and it cannot override the powers of the Airport
Authority of India under Regulation 10.
14. According to Union of India, Government has the sole prerogative to
take a decision by virtue of Section 40 of the AAI Act and in the present
case minutes of the meeting dated 26.03.2013 is the decision of the Central
Government which is in accordance with law.
15. The High Court has mainly relied upon minutes of the meeting dated
26.3.2013. It has neither gone into the question whether the minutes of
the meeting, where decision was taken by the Central Government in
accordance with the provision of Section 40 of the AAI Act nor it had
examined the vires of Regulation 10. The High Court had only referred to
the minutes of the meeting and disposed of the writ petition, recording the
statement of the learned counsel for the petitioner that the directions as
per the minutes of the meeting are complied with. It has to be seen
whether the minutes of the meeting dated 26.3.2013 would amount to a
general order or special order passed by the Central Government and whether
it would override the powers of the Airport Authority of India under
Regulation 10.
16. Article 77 of the Constitution of India deals with the conduct of
business of Government of India while Article 166 of the Constitution of
India deals with the conduct of business of the Government of the
State. All executive actions of the Government of India and the
Government of a State are required to be taken in the name of the
President or the Governor of the concerned State as the case may be.
17. Clause (1) of Article 77 of the Constitution of India provides that
whenever executive action is to be taken by way of an order or instrument,
it shall be expressed to be taken in the name of the President in whom the
executive power of the Union is vested. Clause (2) of Article 77 of the
Constitution of India provides that the validity of an order or instrument
made or executed in the name of the President, and authenticated in the
manner specified in the rules made by the President, shall not be called in
question on the ground that it is not an order or instrument made or
executed by the President.
18. Under clause (3) of Article 77 of the Constitution of India, the
President is to make rules for the more convenient transaction of
government business and for the allocation of the same amongst ministers.
A similar provision occurs in Article 166(3) empowering the Governors to
make rules for the conduct of government business in the States. In all
cases in which the President or the Governor exercises his functions
conferred on him by or under this Constitution with the aid and advice of
his Council of Ministers, he does so by making rules for more convenient
transaction of business and for allocation among ministers of the said
business in accordance with Articles 77(3) and 166(3) respectively.
Further, the rules of business and allocation among ministers is relatable
to Articles 53(1) and 154(1) that the executive power shall be exercised by
the President or the Governor directly or through the subordinate officers.
The President or the Governor means the President or the Governor aided
and advised by the Council of Ministers. Neither Article 77(3) nor Article
166(3) provides for any delegation of power.
19. Under the Government of India (Transaction of Business) Rules, 1961,
the government business is divided amongst the ministers and specific
functions are reallocated to different ministries. Each ministry can
therefore issue orders or notifications in respect of the functions which
have been allocated to it under the Rules of Business. We may usefully
refer to Government of India (Transaction of Business) Rules, 1961, as
lastly amended by amendment dated 1.12.2014 made by the President in
exercise of the provisions of sub-clause (3) of Article 77 of the
Constitution of India for more convenient transaction of the business of
the Government of India. Rule 3 provides that subject to certain
exceptions made thereunder, all business allotted to a department under
the Government of India (Allocation of Business) Rules, 1961 shall be
disposed of by or under the general or special directions of the Minister
in Charge. Further Rule 4 provides for Inter-Departmental Consultations.
Rule 4(1) reads as under:-
"4 Inter-Departmental Consultations.-(1) When the subject of a case
concerns more than one department, no decision be taken or order issued
until all such departments have concurred, or, failing such concurrence, a
decision thereon has been taken by or under the authority of the Cabinet."
Sub-clause (2) of Rule 4 which is very much relevant in instant case can be
reproduced here for convenience:
"Unless the case is fully covered by powered to sanction expenditure or to
appropriate or re-appropriate funds, conferred by any general or special
orders made by the Ministry of Finance, no department shall, without the
previous concurrence of the Ministry of Finance, issue any orders which
may-
involve any abandonment of revenue or involve any expenditure for which no
provision has been made in the appropriation act;
...
..
Otherwise have a financial bearing whether involving expenditure or not;"
20. In State of Sikkim vs. Dorjee Tshering Bhutia & Ors.[3], it is
observed as under:-
"14....The government business is conducted under Article 166(3) of the
Constitution in accordance with the Rules of Business made by the Governor.
Under the said Rules the government business is divided amongst the
ministers and specific functions are allocated to different ministries.
Each ministry can, therefore, issue orders or notifications in respect of
the functions which have been allocated to it under the Rules of Business."
21. In Gulabrao Keshavrao Patil & Ors. vs. State of Gujarat & Ors.[4],
it is held as under:-
"14...It would, therefore, be clear that the decision of a Minister under
the Business Rules is not final or conclusive until the requirements in
terms of clauses (1) and (2) of Article 166 are complied with. Before the
action or the decision is expressed in the name of the Governor in the
manner prescribed under the Business Rules and communicated to the party
concerned it would always be [pic]open by necessary implication, to the
Chief Minister to send for the file and have it examined by himself and to
take a decision, though the subject was allotted to a particular Minister
for convenient transaction of the business of the Government. The subject,
though exclusively allotted to the Minister, by reason of the
responsibility of the Chief Minister to the Governor and accountability to
the people, has implied power to call for the file relating to a decision
taken by a Minister. The object of allotment of the subject to a Minister
is for the convenient transaction of the business at various levels through
designated officers...."
22. In terms of Rule 3 the alleged decision taken pursuant to meeting
dated 26.3.2013 should have been sanctioned by under the general or special
directions of the Minister in Charge. Since in this case, stakes of
different departments headed by different ministries are concerned, the
provision of Rule 4 would apply i.e. alleged decision should have been
taken by the concerned committee of the Cabinet. Since, the alleged
decision involves the financial bearing also, it should have all
concurrence of Finance Department also. Apparently alleged minutes of the
meeting purportedly stated to be an order in writing by Central Government
and later communicated to all concerned, are not disposed of in pursuance
of Rule 4 i.e. neither the decision was sanctified by Cabinet nor the
concurrence of Finance Department was taken.
23. At this stage, it is apposite to consider the ratio laid down in MRF
Limited vs. Manohar Parrikar & Ors.[5], wherein scope of Article 166 (3)
was under consideration and observing that Rules of Business framed under
Articles 166(3) and 77(3) are mandatory, this Court has held as under:-
"67.....In the case on hand, we are required to examine the contentions of
the appellants on this issue with reference to the Business Rules framed by
Governor of Goa under Article 166(3) of the Constitution of India.
68. Rule 7(2) of the Business Rules of the Government of Goa states, that,
a proposal which requires previous concurrence of the Finance Department
under the said Rule, but in which the Finance Department has not concurred,
may not be proceeded with, unless the Council of Ministers has taken a
decision to that effect. The wordings of this Rule are different from the
provisions of Rule 9 of the Business Rules of Maharashtra and have to be
read in context with the provisions of Rule 3 of the Business Rules of the
Government of Goa which states that the business of the Government shall be
transacted in accordance with the Business Rules. Under Rule 7(2) thereof,
the concurrence of the Finance Department is a condition precedent.
69. Likewise, Rule 6 of the Business Rules states, that, the Council of
Ministers shall be collectively responsible for all executive orders passed
by any Department in the name of the Governor or contract made in exercise
of the power conferred on the Governor or any other officer subordinate to
him in accordance with the Rules, whether such orders or contracts are
authorised by an individual Minister on a matter pertaining to the
Department under his charge or as the result of discussion at a meeting of
the Council of Ministers or otherwise. This Rule requires that an executive
order issued from any Department in the name of the Governor of the State
should be known to the Council of Ministers so as to fulfil the collective
responsibility of the Council of Ministers.
70. Further, Rule 7 of the Business Rules requires that no Department shall
without the concurrence of the Finance Department issue any order which may
involve any abandonment of revenue or involve expenditure for which no
provisions have been made in the Appropriation Act or involve any
[pic]grant of land or assignment of revenue or concession, grant, lease or
licence in respect of minerals or forest rights or rights to water, power
or any easement or privilege or otherwise have financial implications
whether involving expenditure or not.
71. From a combined reading of the provisions of Rules 7, 3 and 6 of the
Business Rules of the Government of Goa the conclusion would be
irresistible that any proposal which is likely to be converted into a
decision of the State Government involving expenditure or abandonment of
revenue for which there is no provision made in the Appropriation Act or an
issue which involves concession or otherwise has a financial implication on
the State is required to be processed only after the concurrence of the
Finance Department and cannot be finalised merely at the level of the
Minister-in-charge. The procedure or process does not stop at this. After
the concurrence of the Finance Department the proposal has to be placed
before the Council of Ministers and/or the Chief Minister and only after a
decision is taken in this regard that it will result in the decision of the
State Government. Therefore, the High Court has rightly rejected the
arguments of the appellants herein based on the judgment of the Full Bench
of the High Court.
72. The High Court has observed, that the Rules of Business are framed in
such a manner that the mandate of the provisions of Articles 154, 163 and
166 of the Constitution are fulfilled. Therefore, if it is held that the
non-compliance with these Rules does not vitiate the decisions taken by an
individual Minister concerned alone, the result would be disastrous. In a
democratic set-up the decision of the State Government must reflect the
collective wisdom of the Council of Ministers or at least that of the Chief
Minister who heads the Council. The fact that the decisions taken by the
Minister alone were acted upon by issuance of notification will not render
them decisions of the State Government even if the State Government chose
to remain silent for a sufficient period of time or the Secretary concerned
to the State Government did not take any action under Rule 46 of the
Business Rules. If every decision of an individual Minister taken in breach
of the Rules are treated to be those of the State Government within the
meaning of Article 154 of the Constitution, the result would be chaotic.
The Chief Minister would remain a mere figure head and every Minister will
be free to act on his own by keeping the Business Rules at bay. Further, it
would make it impossible to discharge the constitutional responsibility of
the Chief Minister of advising the Governor under Article 163. Therefore,
it is difficult to accept the contentions of the appellants that the
Business Rules are directory.
73. We also subscribe to and uphold the view of the High Court that
Business Rules 3, 6, 7 and 9 are mandatory and not directory and any
decision taken by any individual Minister in violation of them cannot be
termed as the decision of the State Government. We are fortified in our
view by several decisions of this Court". (emphasis added)
24. From a combined reading of Rules 3, 4, 4(2) and in the light of the
above decisions, the minutes of meeting which is to be converted as a
general or special order in writing by the Central Government involving the
abandonment of revenue or which has a financial implication on the Airports
Authority of India which is under the control of Civil Aviation Ministry,
it was required to proceed only after the concurrence of Finance
Department. It cannot be finalized merely at the level of
officers/representatives of Civil Aviation, Central Board of Excise and
Customs etc. After concurrence of the Finance Ministry, the minutes of
the meeting ought to have been placed before the concerned minister as per
the Rules of Business. Sanctification by the concerned ministry and the
concurrence of Finance Department was a mandatory condition in order to
hold the minutes of the meeting dated 26.3.2013 as "a general or special
order in writing by the Central Government". In the absence of any such
sanctification by the competent authority, in our view, mere minutes of the
meeting would not give any indefeasible right to the appellant.
25. According to the second respondent (Union of India), the meeting had
been convened in the backdrop of Cape Town Convention and Protocol i.e. the
Convention on International Interests in Mobile Equipment which provides
for the protection of the international interests in the aircrafts as
well and India became signatory to this Convention on 31.3.2008. Union
of India contends that in the meeting convened on 26.3.2013, it was decided
that in order to honour the international obligations of India and to
restore faith of international business community and investors, it was
necessary to allow the aircrafts to be returned to the owners-lessors.
Stand of UOI is that minutes of the meeting is the decision of the Central
Government is in accordance with law and has the force of law. Such a
decision involving financial implications must have been taken in terms of
the constitutional scheme i.e. upon compliance of requirement of Article 77
of the Constitution. There is nothing on record to show that the minutes
of the meeting had the concurrence of the Finance Department and was either
confirmed or approved by the concerned minister and such directions were
not shown to have been issued pursuant to any decision taken by a competent
authority in terms of Rules of Business framed under Article 77 of the
Constitution of India. The minutes of the meeting do not become a general
or special order in writing by the Central Government unless the same was
sanctified and acted upon by issuing an order in the name of the
President in the manner provided under Article 77 (2) of the Constitution.
26. It is the further contention that the Central Government has the
sole prerogative to take a decision to waive the right to detain the
aircraft and in the present case, DIAL has waived its right by
participating in the meeting and accepting the decision taken in the
meeting. It was also submitted that the Central Government is empowered to
take a unilateral decision in this regard and the appellant had not
objected to the decision being made and thus precluded from raising any
objections regarding the same. When the minutes of meeting were not
sanctioned by the competent authority and in accordance with the
mandatory requirement of Article 77(3) of the Constitution of India, the
same cannot be put against the appellant.
27. In Haridwar Singh vs. Bagun Sumbrui and Ors.[6], this Court was
dealing with the Business of Rules of the State of Bihar framed under
Article 166 (3) of the Constitution of India wherein this Court held
(pp.895-896 paras 14-16) as under:-
"14. Where a prescription relates to performance of a public duty and to
invalidate acts done in neglect of them would work serious general
inconvenience or injustice to persons who have no control over those
entrusted with the duty, such prescription is generally understood as mere
instruction for the guidance of those upon whom the duty is imposed (See
Dattatreya Moreshwer Pangarkar vs. State of Bombay, AIR 1952 SC 181).
15. Where however, a power or authority is conferred with a direction that
certain regulation or formality shall be complied with, it seems neither
unjust nor incorrect to exact a rigorous observance of it as essential to
the acquisition of the right or authority (see Maxwell, Interpretation of
Statutes, 6th Edn., pp.649-650).
16. .....Further, Rule 10(2) makes it clear that where prior consultation
with the Finance Department is required for a proposal, and the Department
on consultation, does not agree to the proposal, the Department originating
the proposal can take no further action on the proposal. The Cabinet alone
would be competent to take a decision. When we see that the disagreement of
the Finance Department with a proposal on consultation, deprives the
Department originating the proposal of the power to take further action on
it, the only conclusion possible is that prior consultation is an essential
prerequisite to the exercise of the power...."
28. Unless the minutes of meeting resulted in a final decision taken by
the competent authority in terms of Article 77(3) of the Constitution and
the decision so taken is communicated to the concerned person, the same was
not capable of being enforced by issuing a direction in a writ petition.
Without going into the merits of the matter, High Court was not right in
disposing of the matter in terms of the minutes of the meeting dated
26.3.2013 and the impugned order is liable to be set aside.
29. In the result, the impugned order is set aside and the appeal is
allowed. The appellant is at liberty to invoke the bank guarantee
furnished by the respondents. The appellant is also at liberty to recover
the arrears of landing, parking or housing fees charges from the concerned
respondents in accordance with law. No order as to costs.
.........................J.
(V.
Gopala Gowda)
........................J.
(R.
Banumathi)
New Delhi;
March 17, 2015
-----------------------
[1] [2] (2009) 15 SCC 705
[3] [4] (1968) 1 SCR 111
[5] [6] (1991) 4 SCC 243
[7] [8] (1996) 2 SCC 26
[9] [10] 2010 (11) SCC 374
[11] [12] (1973) 3 SCC 889
