DELHI INTERNATIONAL AIRPORT LTD. Vs. INTERNATIONAL LEASE FINANCE CORP.& ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 2932 of 2015, Judgment Date: Mar 17, 2015

• The   issue   falling   for
  consideration  is  whether  minutes  of  meeting  can   override   statutory
  regulations.

•  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.

• 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.

                                                                  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