Case: Delhi International Airport Ltd Vs. International Lease Finance Corp

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 decidedDGCA 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.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.

Reasoning:
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.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.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 ofthe 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.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.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.