TaxTMI 
TaxTMI 
2015 (3) TMI 1224
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....d 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 ....
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.... 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. (2009) 15 SCC 705 and Sant Ram Sharma vs. State of Rajasthan & Ors. (1968) 1 SCR 111 , 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....
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....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 Regul....
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....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....
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....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 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 ....
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....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 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 concess....
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....ision 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 w....
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.... 27. In Haridwar Singh vs. Bagun Sumbrui and Ors. (1973) 3 SCC 889 , 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 consul....