JUDGMENT
Mukul Mudgal, J.
1. Rule DB. With the consent of the learned counsel for the parties, the writ petition is taken up for final hearing.
2. This writ petition challenges the constitutional validity of the Section 12(3)(r) of the Airport Authority of India Act, 1994 (hereinafter referred to as the `AAI Act’) as being inconsistent with the provisions of the Section 12(1) and 12(2) of the said AAI Act as well as on the ground of being ultra vires of Article 14 and 21 of the Constitution of India. The petitioner, International Airport Authority of India Officers Association through its General Secretary, New Delhi (hereinafter referred to as the `Association’) is a registered association representing approximately 1000 officers of the International Airport Division of the Airport Authority of India whereas the entire strength of the Airport Authority of India is approximately 20,000 employees working under it. The respondent No.1 is the Union of India through Secretary, Ministry of Civil Aviation, Govt. of India, New Delhi (hereinafter referred to as the `UOI’). The respondent No.2 is the Airport Authority of India through its Chairman, New Delhi ((hereinafter referred to as the `AAI’). Mr. Parag Tripathi, the learned senior counsel appearing on behalf of the petitioner association has not relied upon the violation of Article 21 of the Constitution but has confined his pleas to the inconsistency of Section 12(r)(3) of the AAI Act with the provisions of Section 12(1) and 12(2) of the said AAI Act. He has thus contended that the inconsistency was so arbitrary and unreasonable so as to make it violative of Article 14 of the Constitution.
3. The present writ petition has been occasioned by the answer to a Parliamentary question wherein it was stated as follows:-
“PARLIAMENT QUESTIONS
GOVERNMENT OF INDIA
MINISTRY OF CIVIL AVIATION
LOK SABHA
STARRED QUESTION NO.56
TO BE ANSWERED ON 03/03/2005
PRIVATISATION OF AIRPORTS
56. SHRI JOACHIM BAXLA,
ANANTH KUMAR
Will the Minister of Civil Aviation be pleased to state:-
(a) Whether the Government is considering to privatize some of the Airports in the country;
(b) If so, the details thereof and the reasons therefore;
(c) The airports selected for privatization ;
…
ANSWER
…(a), (b) & (c) : Government has already accorded its approval on 11/09/2003 for restructuring and modernisation of the international airports at Delhi and Mumbai through the formation of two separate Joint Venture Companies (JVCs) for world class development and expansion. Airports Authority of India (AAI) and other Public Sector Undertakings (PSUs) of Government of India will hold 26% equity with the remaining 74% equity held by the private sector partner(s)….”
4. One of the pleas canvassed by the learned senior counsel for the association was that in the guise of Executive action, an essential legislative function will be performed by the proposed action of privatization and modernization of the international airports at Delhi and Mumbai through the formation of 2 joint venture companies where the UOI will hold 26% equity and the remaining 74% equity will be held by the private sector partners. This plea was illustrated by submitting that Section 12(1) of the said AAI Act contemplated that the rules, if any, made by the Central Government were required under Section 12(1) to be placed before the Parliament. Since the impugned Executive action of the formation of joint venture companies seeks to bye-pass the Parliament by not adopting the route available under Section 12(1) of the Act of making rules which necessitates the placing of such rules before the Parliament, a collateral method of a joint venture under the purported powers conferred by Article 12(3)(3) has been adopted. This recourse to Section 12(3)(3) rather than Section 12(1) of the Act amounts to an essentially legislative function being camouflaged as an Executive action. In our view it is not necessary to go into this plea as the Section 12(1) of the said AAI Act clearly contemplates an Executive action as is clear from the perusal of the following relevant provisions of Section 12:-
“12. Functions of the Authority. – (1) Subject to the rules, if any, made by the Central Government in this behalf, it shall be the function of the Authority to manage the airports, the civil enclaves and the aeronautical communication stations efficiently.
(2) It shall be the duty of the Authority to provide air traffic service and air transport service at any airport and civil enclaves.
(3) Without prejudice to the generality of the provisions contained in sub-sections (1) and (2), the Authority may-
(a) plan, develop, construct and maintain runways, taxiways, aprons and terminals and ancillary buildings at the airports and civil enclaves;
[(aa) establish airports, or assist in the establishment of private airports, by rendering such technical, financial or other assistance which the Central Government may consider necessary for such purpose;]
…
…
(n) form one or more companies under the Companies Act, 1956 or under any other law relating to companies to further the efficient discharge of the functions imposed on it by this Act.
(o) take all such steps as may be necessary or convenient for, or may be incidental to, the exercise of any power or the discharge of any function conferred or imposed on it by this Act;
…
…
(r) any other activity at the airports and the civil enclaves in the best commercial interests of the Authority including cargo handling, setting up of joint ventures for the discharge of any function assigned to the Authority.”
Section 1(3)(aa) of the amended Act reads as follows:-
“(aa) all private airports insofar as it relates to providing air traffic service, to issue directions under section 37 to them and for the purposes of Chapter VA;”
5. In our view the plea of Shri Tripathi the learned senior counsel for the petitioner Association does not commend itself for approval because under Section 1(3)(aa) and Section 12(3)(aa) of the Act, the existence and establishment of a private airport is contemplated. Even de hors this plea it is evident that the Section 12(3)(3) of the Act itself contemplates an Executive action.
6. The main plea of Shri Tripathi, the learned senior counsel for the association, in addition to his plea of the usurpation of the legislative functions by the impugned Executive action, is that in the judgment of the Hon’ble Supreme Court in Income-tax Officer, `A’ Ward, Indore v. Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. Birlagram, Nagda reported as wherein at Page 725 while construing sub-Sections (2) and (3) of the Income-tax Act, 1961, the Hon’ble Supreme Court observed as follows:-
“5….In the instant case the Income-tax Officer merely exercised his powers under sub-section (3) of Section 220 by imposing the condition that the assessed shall be allowed to pay the arrears by Installments if he paid interest at the rate of 5% per annum offered by him. What is important, however, is that sub-section (3) is not independent of sub-section (2) but is interconnected with it. The words `without prejudice to the provisions contained in sub-section (2)’ clearly show that any order passed by the Income-tax Officer under sub-section (3) must neither be inconsistent with nor prejudicial to the provisions contained in sub-section (2). In other words, the position is that although sub-section (3) is an independent provision the power under this sub-section has to be exercised subject to the terms and conditions mentioned in sub-section (2) so far as they apply to the facts mentioned in sub-section (3). Thus if sub-section (2) of Section 220 provided that the rate of interest chargeable would be four per cent per annum any order passed under sub-section (3) could not vary that rate, and if it did, then the order to that extent would stand superseded. The argument of the assessed is that sub-sections (2) and (3) of Section 220 were independent provisions which operated in fields of their own. We are, however, unable to accept this somewhat broad proposition of law. Sub-sections (2) and (3) form part of the same section, namely Section 220, and are therefore closely allied to each other. It is no doubt true that the two sub-sections deal with separate issues but the non obstante clause of sub-section (3) clearly restricts the order passed under sub-section (3) to the conditions mentioned in sub-section (2) of Section 220 of the Act.”
7. Relying on the above plea the petitioner’s counsel’s plea is that the above section clearly contemplated that the phrase `without prejudice to the provisions contained in the provisions of Section’ ought to receive an interpretation that the following sub-sections could neither be inconsistent nor prejudicial to the provisions contained in the preceding sub-section. Thus by reliance on the aforesaid judgment in Gwalior Rayon’s case (supra) it was contended that since the Section 12(1) contemplated making of rules and by the impugned route adopted under Section 12(3)(r) of the AAI Act the process of making rules was avoided and thus the Section 12(3)(r) was inconsistent with Section 12(3) of the Act and therefore, constitutionally invalid as being unreasonable and consequently violative of Article 14 of the Constitution of India.
8. Mr. P.P. Malhotra, the learned Additional Solicitor General of India, appearing on behalf of the UOI, has contended that though the Section 12(3)(r) of the AAI Act does not prohibit the impugned action of formation of two joint venture companies, but even if there is some possible overlapping of the functions under Section 12(1) and Section 12(3)(r) these should be construed harmoniously so as to avoid inconsistency and repugnancy. The provisions of the same enactment ought to be construed in a harmonious manner as per the settled position of law. Reliance was placed by Shri Malhotra, the learned ASG on the following extract from the Principles of Statutory Interpretation (9th Edition) 2004 by Justice GP Singh @ 131:-
“….It has already been seen that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between a section and other parts of the statute. It is the duty of the courts to avoid “a head on clash” between two sections of the same Act and, “whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonise.” It should not be lightly assumed that “Parliament had given with one hand what it took away with the other.” The provisions of one section of a statute cannot be used to defeat those of another “unless it is impossible to effect reconciliation between them”. The same rule applies in regard to sub-sections of a section. In the words of Ganjendragadkar, J: “The sub-sections must be read as parts of an integral whole and as being interdependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy”. As stated by Venkatarama Aiyar, J.: “The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is what is known as the rule of harmonious construction.”
9. The above passage makes it clear that it is settled law that the provisions of the same enactment ought to be construed in a harmonious manner and it should not be presumed that the Parliament had given with one hand what it took away on the other. Mr. Malhotra has also relied upon paragraph 4 of the judgment of the Hon’ble Supreme Court in D. Sanjeevayya v. Election Tribunal, Andhra Pradesh and Ors. reported as AIR 1967 SC 1211 at 1213 (V 54 C 253) to contend that the provisions of one section cannot be used to defeat those of another section in the same Act unless it is impossible to effect reconciliation between them. The said para 4 reads as follows:-
“4. We are unable to accept the argument of the appellant as correct. In our opinion, the provisions of Section 150 of the Act must be interpreted in the context of Sections 84 and 98 (c) and other relevant provisions of Part III of the same Act. If the interpretation contended for by the appellant is accepted as correct the vacancy must be filled by a bye-election as soon as a member resigns his seat notwithstanding the pendency of an election petition challenging his election. If the candidate who filed the election petition eventually gets a declaration that the election of the member is void and that he himself had been duly elected there will be two candidates representing the same constituency at the same time, one of them declared to be duly elected at the General Election and the other declared to have been elected at the bye-election and an impossible situation would arise. It cannot be supposed that Parliament contemplated such a situation while enacting Section 150 of the Act. Parliament could not have intended that the provisions of Part VI of the Act pertaining to election petitions, should stand abrogated as soon as a member resigns his seat in the Legislature. It is a well-settled rule of construction that the provisions of a statute should be so read as to harmonious with one another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them…”
10. Mr. Malhotra, the learned ASG appearing for the UOI has also relied upon the judgments of the Hon’ble Supreme Court in Krishan Kumar v. State of Rajasthan and Ors .reported as and Commissioner of Income-tax v. Hindustan Bulk Carriers reported as wherein it was held as follows:-
“11. It is settled principle of interpretation that where there appears to be inconsistency in two sections of the same Act, the principle of harmonious construction should be followed in avoiding a head on clash. It should not be lightly assumed that what the Parliament has given with one hand, it took away with the other. The provisions of one section of statute cannot be used to defeat those of another unless it is impossible to reconcile the same. In Venkataramana Devaru v. State of Mysore , this Court observed:
“The Rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is what is known as the rule of harmonious construction.”
The essence of harmonious construction is to give effect to both the provisions. Bearing these principles in mind it is legitimate to hold that Section 100(4) prescribed period of limitation of one year in respect of the scheme proposed under the provisions of the new Act, while in the case of a scheme under Section 68-C of the old Act, pending on the date of enforcement of the new Act, namely, July 1, 1989, the period of one year as prescribed under Section 100(4) should be computed from the date of commencement of the new Act. This interpretation would given full effect to both the sections –Section 100(4) and Section 217(2)(e) of the new Act.”
“The statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute.”
Thus the position of law laid down by the Hon’ble Supreme Court and as noted in the text by Justice G.P. Singh’s statutory interpretation is clear that the provisions of the statute should be construed harmoniously so as to ensure that the provisions of one section do not defeat those of another unless reconciliation between the two sections is impossible.
11. Mr. V.P. Singh, the learned senior counsel, appearing on behalf of the respondent No.2 has drawn this Court’s attention to the amended provisions of the Airport Authority Act by which the concept of private airports was brought in by virtue of amendment of sub-section (3)(aa) of Section 12 of the AAI Act by introduction of clause wherein the private airports have been defined. This clause (aa) has been incorporated in Section 12(3) which permits the establishment of airports or assistance in the establishment of private airports as one of the functions of the International Airport Authority of India(IAAI). If one of the functions of the IAAI as provided in sub-clause(aa) included the establishment of private airports than the present challenge cannot be entertained as a harmonious construction of the Act clearly shows that it is open to the respondents to take the action of part privatization which has been challenged in the present writ petition. The learned counsel for the petitioner, Shri Sinha has, however, submitted that the above provisions of Sections 1(3)(aa) and Section 12(3)(aa) relate to new airports and could not be made applicable to the privatization of the existing airport.
12. Thus it cannot be said that the provisions of Section 12(3)(r) of the AAI Act are so irreconcilable with Section 12(1) that both the provisions cannot coexist. Section 12(1) of the said AAI Act defines the function of the authority which has to manage airport and the civil enclaves and the aeronautical communication stations efficiently. Section 12(3)(r) of the said AAI Act provided that without prejudice to the generalities of the provisions contained in sub-section (1) & (2) of Section 12, the authority may undertake any other activity such as the privatization of the airports in the best commercial interests of the authority and such activity could be undertaken by setting up joint ventures for the discharge of any function assigned to the authority. If Section 12(3)(r) of the AAI Act is to be construed harmoniously as is the constitutional mandate, then in our view there is no inconsistency between the provisions of Section 12(1) mandating the management of the airport subject to rules made by the Government and Section 12(3) which contemplates a setting up of joint venture so as to discharge a function assigned to the Authority under Section 12(1) of the AAI Act. Thus Section 12(3)(r) is a vehicle to carry out the mandate of the functions prescribed for the authority under Section 12(3)(1). The coexistence of both Section 12(1) with Section 12(3) is not an impossibility and on the contrary both are complementary to each other. In light of this the plea of Shri Tripathi that the phrase `without prejudice to the generality of the provisions of sub-section (1) occurring in Section 12(3) ought to receive a construction as per the judgment of the Hon’ble Supreme Court in Gwalior Rayon’s case (supra) even if accepted, cannot advance the plea of irreconcilability of Section 12(1) and Section 12(3) because there is nothing inconsistent or prejudicial in Section 12(3) contrary to the legislative mandate of Section 12(1) of the Act.
13. Thus we find no merit in this writ petition and the writ petition is, therefore, dismissed.
14. The writ petition stands disposed of accordingly.