Reportable

IN THE SUPREME COURT OF  INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No3844 of 2011 (Arising out of SLP(C) No.27814 of 2008)

The Joint Action Committee of Airlines  Pilots Associations of India & Ors.            ..Appellants  

Versus

The Director General of Civil Aviation & Ors.                       ..Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.  

2. This appeal has been preferred against the judgment and order  

dated  14.8.2008 passed  by  the  High Court  of  Judicature  at  

Bombay  dismissing  the  Writ  Petition  No.  1687  of  2008,  

wherein  the  appellants  had  challenged  the  validity  and  

propriety of a Circular issued by the Director General of Civil  

Aviation,  (hereinafter  called  as  `DGCA’),  respondent  No.1  

dated 29.5.2008, to the effect that Civil Aviation Requirements

(hereinafter  called as  the  ‘CAR’)  dated 27.7.2007 had been  

kept in abeyance.   

3. Facts and circumstances giving rise to this case are that the  

appellants  are  the  Joint  Action  Committees  of  the  Airlines  

Pilots  Association  representing  several  airlines  operating  in  

India.  The dispute relates to the Flight Time (FT) and Flight  

Duty  Time  Limitation  (FDTL),  as  there  is  some  variance  

between  the  Aeronautical  Information  Circular  (hereinafter  

called  as  ‘AIC’)  No.28/92  and  the  CAR  2007.  Vide  AIC  

28/92, FT and FDTL had been defined and fixed depending  

upon the distance of destination and number of landings. The  

rest period for the pilots  stood substantially  changed by the  

CAR 2007 to the greater benefit of the pilots. However, a large  

number of representations had been made by the airlines to the  

DGCA and the Central Government, respondents  herein, to  

the effect that it was practically not possible for them to ensure  

compliance of  CAR 2007  and thus,  the same was kept in  

abeyance.  By  a  subsequent  order  dated  2.6.2008,  the  AIC  

28/92 was revived.  

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4. Appellants challenged the Circular  dated 29.5.2008 before the  

High Court on the grounds, inter-alia,  that even if  CAR 2007  

is kept in abeyance, the AIC 28/92, which stood obliterated,  

could  not  be  revived;  the  CAR  2007  had  been  kept  in  

abeyance by the order of the Authority, which did not have the  

competence  to  interfere  in  the  functioning  of  the  DGCA,  

respondent No. 1.  The statutory authority i.e. DGCA alone is  

competent  to  pass  the  appropriate  order  in  the  matter.  The  

Circular dated 29.5.2008 has seriously jeopardised the safety  

of passengers and the same was passed in flagrant violation of  

the principles of natural justice.  However, the High Court did  

not accept the submissions of the appellants, rather rejected the  

same in an elaborate judgment. Hence, this appeal.  

5.      Shri K.K. Venugopal, learned senior counsel appearing for the  

appellants  has agitated  all  the  issues raised before the  High Court.  

Once  AIC  28/92  stood  obliterated,  the  question  of  its  

revival/application/enforcement on putting the CAR 2007 in abeyance  

could not arise.  More so, the orders by the DGCA make it abundantly  

clear  that  the  same  had  been  passed  on  instructions  from  the  

competent  authority.  The  order  stood vitiated  as  the  same had not  

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been passed  by  the  DGCA on its  own.   Law does  not  permit  the  

keeping of the subordinate legislation in abeyance without following  

the  procedure,  prescribed  for  its  enactment.  The  Circular  dated  

29.5.2008 had been issued in violation of the guidelines stipulated for  

issuance of  the CAR. The judgment  and order  impugned herein  is  

liable to be set aside and the appeal deserves to be allowed.  

6.       On the contrary, Shri Parag P. Tripathi, learned ASG, Shri C.U.  

Singh and Shri L. Nageshwar Rao, learned senior counsel appearing  

for the respondents, have submitted that the writ petition filed by the  

appellants before the High Court was not maintainable as none of the  

necessary  parties  had  been  impleaded  therein.  However,  the  

respondents, i.e. the airlines got themselves impleaded in the petition.  

The AIC and CAR fall within the category of executive instructions  

which  simply  provide  the  guidelines  for  persons  working  in  the  

department.  The  said  administrative  instructions  do  not  have  any  

statutory force and thus can be kept in abeyance, altered or replaced  

by another executive instructions. Some of the appellants themselves  

challenged the CAR dated 27.7.2007 by filing Writ Petition No.2176  

of  2007  on  the  grounds  that  the  said  CAR  revealed  shocking  

deviations  and  selective  exclusions  from  international  safety  

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requirements in respect of FDT and FTL. It has further been submitted  

therein that the amendment to FDT and FTL in the said CAR was  

neither in conformity with the existing safety rules, nor with settled  

principles  and  procedures  adopted  by  the  similar  international  

regulatory authorities. However, the said writ petition stood dismissed  

as   withdrawn  vide  order  dated  31.1.2008.   Once  the  CAR dated  

27.7.2007  has  been  put  under  suspension,  the  same  is  also  under  

challenge by the appellants which also include some of the  petitioners  

in Writ  Petition No. 2176 of 2007. Their conduct  is  tantamount to  

approbate and reprobate which is not permissible in law. The DGCA  

had communicated vide letter dated 29.5.2008 its decision to keep the  

CAR 2007 in abeyance on the basis of advice/decision taken by the  

competent  authority,  i.e.  the  Central  Government.  The  Hon’ble  

Minister was the competent authority under the Business Rules 1961.  

The DGCA himself had also participated in the process.  The order  

dated 2.6.2008, providing that AIC 28/1992 would be effective once  

again,  was  not  challenged  by  the  appellants  for  the  reasons  best  

known to them.  An order which is not under challenge, could not be  

quashed.   Thus, no fault can be found with the impugned judgment  

and order. The appeal lacks merit and is liable to be dismissed.  

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7.      We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

Relevant Statutory Provisions:

8. It may be necessary to make reference to relevant provisions of  

the Aircraft Act, 1934 (hereinafter referred to as `Act 1934’).  Section  

4A of the Act 1934 provides for safety oversight functions that the  

DGCA  shall  perform  the  safety  oversight  functions  in  respect  of  

matters specified in this Act or the rules made thereunder.  Section 5  

empowers the Central Government to make rules.  Sections 5(2) and  

5-A of the Act 1934 read as under:

(2) Without  prejudice  to  the  generality  of  the   foregoing power, such rules may provide for-

…………………………….. (m) the measures to be taken and the equipment to   

be carried for the purpose of ensuring the safety   of life.

   5A. Power to issue directions.-(1) The  Director- General of Civil Aviation or any other officer specially   empowered in this behalf by the Central Government   may,  from  time  to  time,  by  order,  issue  directions,   consistent with the provisions of this Act and the rules  made thereunder,  with  respect  to  any of  the  matters   specified in clauses (aa), (b), (c), (e), (f),(g), (ga), (gb),   (gc), (h), (i), (m) and (qq) of sub-section (2) of section   5, to any person or persons using any aerodrome or  engaged in the aircraft operations, air traffic control,   maintenance  and  operation  of  aerodrome,  communication,  navigation,  surveillance  and  air   

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traffic  management  facilities  and  safeguarding  civil   aviation against acts of unlawful interference, in any   case where the Director-General of Civil Aviation or   such other officer is satisfied that in the interests of the   security of India or for securing the safety of aircraft   operations it is necessary so to do.   

(2) Every direction issued under sub-section (1) shall   be complied with by the person or persons to whom  such direction is issued.  

      Section 14 provides that rules shall be made after publication.  

9.     The provisions of the Aircraft Rules, 1937 (hereinafter referred  

to as `Rules 1937’) read as under:  

“3(22)- “Flight time”-

(i) in  respect  of  any  aeroplane,  means  the  total   time  from  the  moment  of  the  aeroplane  first   moves  for  the  purpose of  taking off  until  the  moment it finally comes to rest at the end of the   flight; and

……………………….. …………………….

29C. Adoption of the Convention and Annexes.- The  Director-General  may  lay  down  standards  and  procedures not inconsistent with the Aircraft Act 1934  (22 of 1934) and the rules made thereunder  to carry   out the Convention and any Annex thereto.  

42A. Pilot not to fly for more than 125 hours during  any period of 30 consecutive days.

133A.    Direction  by  Director-General- (1)  The  Director-General  may,  through  Notices to  Airmen  (NOTAMS),  Aeronautical  Information  Publication,   Aeronautical Information Circulars (AICs),  Notice to   

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Aircraft  Owners  and  Maintenance  Engineers  and  publication entitled Civil Aviation Requirements issue   special  directions not  inconsistent  with  the  Aircraft   Act, 1934 (22 of 1934) or these rules, relating to the   operation, use, possession, maintenance or navigation  of  aircraft  flying  in  or  over  India  or  of  aircraft   registered in India.

(2) The Civil  Aviation  Requirements under  sub- rule (1) shall be issued after placing the draft   on the  website  of  the  Directorate  General  of   Civil  Aviation for  a  period of  thirty  days  for  inviting  objections  and  suggestions  from  all   persons likely to be affected thereby:

Provided that the Director General may, in the   public interest and by order in writing, dispense with   the  requirement  of  inviting  such  objections  and  suggestions.

(3) Every direction issued under sub-rule (1)  shall   be complied with by the persons or persons to whom  such direction is issued.”                  (Emphasis added)

10. The case requires to be considered in the light of the aforesaid  

submissions, the factual foundation laid by the parties and the relevant  

statutory provisions.   

11. Admittedly,  a  Writ  Petition  No.  2176  of  2007  was  filed  by  

some of the present appellants seeking the following reliefs:  

“(a) That this Hon’ble Court be pleased to hold  and  declare  that  the  impugned  amendment  dated  27.7.2007  of  Civil  Aviation  Requirements  with  the   subject “Flight Duty Time and Flight Time Limitations   –  Flight  Crew  Members”  is  illegal,  irrational  and  

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inconsistent  with  the  settled  principles  of  law  and  practice.   (b) That this Hon’ble Court be pleased to issue a writ   of mandamus or a writ in the nature of mandamus or  any  other  appropriate  writ,  order  or  direction  under   Article 226 of the Constitution of India,  directing the   respondent  DGCA, not  to proceed with the impugned  amendment  dated  27.7.2007  without  conducting  a  thorough  scientific  study  by  an  expert  committee   consisting  of  Aviation  Medical  Specialists  under  the   guidance  of  an  impartial  medical  authority  such  as   DGCA-Air,  IAF  who  has  no  commercial  or  vested   interests.   (c) That  pending the  hearing and final  disposal  of   this petition, this Hon’ble Court be pleased to direct the  respondent to maintain status quo in respect of Flight   Duty  Time  Limitations  (FDTL)  and  Flight  Time  Limitations (FTL) as on June 2007.”  

12. The same was withdrawn vide order dated 31.1.2008 and the  

order runs as under:  

“The  learned  counsel  for  the  petitioners   submits that the grievance has already been redressed   and he does not  want to pursue the petition.  Petition  dismissed as not pressed.”

The appellants/writ  petitioners  therein  had also submitted  that  

AIC 28/92 was a most  scientific and properly formulated direction  

and  CAR  2007  was  based  on  a  draft  which  revealed  shocking  

deviations and selective exclusions from safety regulations in respect  

of FDT and FTL, adopted/accepted internationally.    

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13. In R.N. Gosain v. Yashpal Dhir, AIR 1993 SC 352, this Court  

observed as under:–

“Law  does  not  permit  a  person  to  both  approbate and reprobate. This principle is based on  the  doctrine  of  election  which  postulates  that  no  party can accept and reject the same instrument and  that  “a  person  cannot  say  at  one  time  that  a   transaction  is  valid  and  thereby  obtain  some  advantage, to which he could only be entitled on the   footing that it is valid, and then turn round and say it   is  void  for  the  purpose  of  securing  some  other  advantage.”

14. The doctrine of election is based on the rule of estoppel- the  

principle that one cannot approbate and reprobate inheres in it. The  

doctrine of estoppel by election is one of the species of estoppels in  

pais (or equitable estoppel), which is a rule in equity. By that law, a  

person may be precluded by his actions or conduct or silence when it  

is his duty to speak, from asserting a right which he otherwise would  

have had. Taking inconsistent pleas by a party makes its conduct far  

from satisfactory.  Further, the parties should not blow hot and cold by  

taking  inconsistent  stands  and  prolong  proceedings  unnecessarily.  

(Vide:  Babu Ram @ Durga Prasad v.  Indra Pal Singh (D) by  

L.Rs.,  (1998)  6  SCC 358;  P.R.  Deshpandey  v.  Maruti  Balaram  

Haibatti,  (1998)  6 SCC 507; and  Mumbai International  Airport  

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Private Limited v. Golden Chariot Airport & Anr., (2010) 10 SCC  

422).   

15. In  view of  the  above,  it  is  clearly  evident  that  some  of  the  

present appellants, had challenged the CAR 2007, wherein it had been  

submitted that AIC 28/92 was based on better scientific studies. The  

same remained in operation for more than 17 years and no one had  

ever  raised  any grievance  in  respect  of  its  contents  or  application.  

However, it appears that during the pendency of the said writ petition,  

grievance  of  those  petitioners  stood  redressed  and,  thus,  they  

withdrew the writ petition. They did not even ask the court to reserve  

their right to file a fresh petition challenging the same, in case the  

need arose, as required in the principle enshrined in Order XXIII of  

the Code of Civil Procedure, 1908. Such a conduct of those appellants  

in blowing hot and cold in the same breath is not worth approval.  

16. The appellants have raised the issue as to whether order dated  

29.5.2008,  keeping  the  CAR  2007  in  abeyance  could  be  passed  

without following the procedure prescribed in CAR dated 13.10.2006.  

CAR dated 13.10.2006 provides for a detailed procedure for the  

promulgation of CAR. Clause 3.3 provides that whenever a change is  

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effected to a CAR, it shall be termed as a revision and effective date  

of the revision of CAR shall be indicated therein.  According to clause  

4 thereof,  if a new CAR or a revision to the existing CAR is proposed  

to be issued, the draft of the proposed CAR/revision shall be posted  

on  DGCA’s  website  or  circulated  to  all  the  persons  likely  to  be  

effected thereby inviting their  objections/suggestions.  Objections so  

received shall  be analysed, considered and incorporated in case the  

same are found to be acceptable, before the promulgation of CAR.

17. In  State of A.P. & Ors. v. Civil Supplies Services Assn. &  

Ors., (2000) 9 SCC 299, the government had issued a notification that  

provided, inter-alia, that certain rules which  had earlier been framed  

by the government would be kept in abeyance.  The Administrative  

Tribunal  quashed  the  same  directing  the  government  to  frame  the  

rules in a particular manner and to give partial effect to the rules kept  

in abeyance. However, on appeal, this Court set aside the order of the  

Tribunal  and  held  that  the  Tribunal  could  neither  have  given  

directions to the Government to frame rules in any particular manner,  

nor to give partial effect to the rules kept in abeyance, as the order had  

exclusively been legislative in character.   

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Thus, in exceptional circumstances, it may be permissible for  

the  statutory  authority  to  put  subordinate  legislation  in  abeyance.  

However,  such  an  order  being  legislative  in  character,  is  not  

warranted to be interfered by the Court/Tribunal.  

18. The  CAR  2007  is  neither  a  statute  nor  a  subordinate  

legislation. Provisions contained in Sections 4A, 5 & 5A of the  

Act 1934 and Rules 42A & 133A of the Rules 1937, make it  

evident that the same are merely executive instructions which  

can  be  termed  as  “special  directions”.   The  executive  

instruction can supplement a statute or cover areas to which  

the statute does not extend, but it cannot run contrary to the  

statutory provisions or whittle down their effect. (Vide: State  

of M.P. & Anr. v. M/s. G.S. Dall & Flour Mills (1992) supp.  

1 SCC 150).

19.    In  Khet Singh v. Union of India,  AIR 2002 SC 1450, this  

Court  considered  the  scope  and  binding  force  of  the  Executive  

instructions issued by the Narcotic Bureau, New Delhi and came to  

the  conclusion  that  such  instructions  are  binding  and  have  to  be  

followed by the investigating officer, coming within the purview of  

Narcotic Drugs and Psychotropic Substances Act, 1985, even though  

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such instructions do not have the force of law. They are intended to  

guide the officers and to see that a fair procedure is adopted by them  

during the investigation of the crime.

    20.      A Constitution Bench of this Court in Sant Ram Sharma v.  

State of Rajasthan & Ors., AIR 1967 SC 1910 held as under:

“It  is  true  that  Government  cannot  amend  or   supersede  statutory  rules  by  administrative   instructions,  but  if  the  rules  are  silent  on  any   particular point, Government can fill up the gaps  and supplement the rules and issue instructions  not  inconsistent  with  the  rules  already framed.”  (Emphasis added)  

        Thus, an executive order is to be issued keeping in view the  

rules and executive business, though the executive order may not have  

a force of law but it is issued to provide guidelines to all concerned,  

who are bound by it.

21.    In Union of India & Anr. v. Amrik Singh & Ors., AIR 1994  

SC 2316,  this  Court  examined  the  scope  of  executive  instructions  

issued  by  the  Comptroller  and  Auditor  General  for  making  the  

appointments  under  the  provisions  of  Indian  Audit  and  Accounts  

Department  (Administrative  Officers,  Accounts  Officers  and  Audit  

Officers) Recruitment Rules, 1964, and came to the conclusion that  

the CAG of India had necessary competence to issue departmental  

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instructions on matters of conditions of service of persons serving in  

Department,  being  the  Head  of  the  Department,  in  spite  of  the  

statutory  rules  existing  in  this  regard.   The  Court  came  to  the  

conclusion that an enabling provision is there and in view thereof, the  

CAG had exercised his powers and issued the instructions which are  

not inconsistent with the statutory rules, the same are binding for the  

reason that the provision in executive instructions has been made with  

the required competence by the CAG.   

22. Thus, it  is evident from the above that executive instructions  

which are issued for guidance and to implement the scheme of the Act  

and do not have the force of law, can be issued by the competent  

authority and altered, replaced and substituted at any time. The law  

merely  prohibits  the  issuance  of  a  direction,  which  is  not  in  

consonance with the Act or the statutory rules applicable therein.

23.      This Court in  State of U.P. & Ors. v. Hirendra Pal Singh  

etc., JT (2010) 13 SC 610,  considered a large number of judgments  

particularly  in  Firm  A.T.B.  Mehtab  Majid  &  Co.  v.  State  of  

Madras &  Anr., AIR 1963 SC 928; B.N. Tewari v. Union of India  

& Ors., AIR 1965 SC 1430; Indian Express Newspapers (Bombay)  

Private Ltd. & Ors. v. Union of India & Ors., AIR 1986 SC 515;  

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West U.P. Sugar Mills Association & Ors. v. State of U.P. & Ors.,  

AIR 2002 SC 948; Zile Singh v. State of Haryana & Ors., (2004) 8  

SCC 1;  and  State  of  Kerala  & Anr.  v.  Peoples  Union for  Civil  

Liberties, Kerala State Unit & Ors., (2009) 8 SCC 46, and came to  

the conclusion that once the old rule has been substituted by the new  

rule,  it  stands  obliterated,  thus  ceases  to  exist  and  under  no  

circumstance,  can it  be  revived in  case the  new rule  is  held  to be  

invalid  and  struck  down  by  the  Court,  though  position  would  be  

different in case a statutory amendment by the Legislature, is held to  

be  bad  for  want  of  legislative  competence.  In  that  situation,  the  

repealed statutory provisions would revive automatically.  

24.It is not a case of automatic revival of AIC 28/92, but there is a  

specific order by the competent authority in exercise of statutory  

powers  whereby  the  AIC  28/92  has  been  revived.   Since  the  

instructions which have been issued under the letter dated 2.6.2008  

are merely in the form of interim measures,  the question of the  

applicability of the principles of natural justice does not arise.  The  

suspension  of  CAR  2007  had  created  a  vacuum,   and  it  was,  

therefore, necessary for the DGCA to take an appropriate decision  

during the finalisation of the CAR, pursuant  to the report  to be  

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submitted by a Committee constituted by the Government.   The  

appellants did not challenge the subsequent order dated 2.6.2008,  

by virtue of which AIC 28/92 dated 10.12.1992 came into force  

which had also been nothing but special directions and remained in  

force from 1992 to 2007.   

25.In the High Court it was sought to be contended on behalf of the  

appellants that as the order dated 2.6.2008 was in continuation of  

the  Circular  dated  29.5.2008,  it  was  not  necessary  for  the  

appellants to challenge the said order separately.  The High Court  

held:  

“We are afraid the contention is not well-founded.   While the Circular dated 29.5.2008 relates to the  subject  of  suspension of CAR of  2007,  the letter   dated 2.6.2008 refers to instructions to the effect   that  AIC  28/92  would  be  effective  till  CAR  is   approved by following the procedure laid down in   CAR  of  13.10.2006.  The  subject  matter  of  two  documents  being  different,  merely  because  the   second  document  is  in  continuation  of  the  first   document, it cannot be said that the challenge to  the  first  document  would  ipso  facto  include  challenge to the second document.   

The letter dated 2.6.2008 is not the effect of   the Circular dated 29.5.2008, but the same  has   been issued in exercise of powers under Rule 133A  of the Rules 1937 to meet the circumstances which   have  resulted  on  account  of  CAR  2007,  being  suspended.  The  cause  for  issuance  of  the  letter   dated  2.6.2008  is  not  directly  flowing  from  the   

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Circular dated 29.5.2008,  but it was issued for the   consequences which followed the issuance of the   Circular  dated  29.5.2008.  Being  so,  in  case  the   appellants wanted to challenge the communication  dated 2.6.2008, they ought to have challenged the  same by raising specific ground in that regard by  laying  proper  factual  foundation  in  support  of   such ground and only then, they could have invited  the order in that regard from the court.”

In absence of the challenge to the same, it is immaterial  

to determine as to whether the same had been issued by the competent  

authority or not, as it is not the case of statutory rules i.e. subordinate  

legislation.  The question of following any procedure for replacement  

is not warranted.    

26. The contention was raised before the High Court that the Circular  

dated  29.5.2008  has  been  issued  by  the  authority  having  no  

competence, thus cannot be enforced. It  is  a  settled  legal  

proposition that the authority which has been conferred with the  

competence under the statute alone can pass the order. No other  

person,  even  a  superior  authority,  can  interfere  with  the  

functioning of the Statutory Authority. In a democratic set up like  

ours,  persons  occupying  key  positions  are  not  supposed  to  

mortgage their discretion, volition and decision making authority  

and be prepared to give way to carry out  commands having no  

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sanctity  in  law.  Thus,  if  any  decision  is  taken  by  a  statutory  

authority at the behest or on suggestion of a person who has no  

statutory role to play, the same would be patently illegal.  (Vide:  

The Purtabpur Co.,  Ltd.  v.  Cane Commissioner  of  Bihar &  

Ors.,  AIR 1970 SC 1896;  Chandrika Jha v. State of Bihar &  

Ors.,  AIR  1984  SC 322;  Tarlochan  Dev  Sharma  v.  State  of  

Punjab & Ors., AIR 2001 SC 2524; and  Manohar Lal (D) by  

L.Rs. v. Ugrasen (D) by L.Rs. & Ors., AIR 2010 SC 2210).

27. Similar  view  has  been  re-iterated  by  this  Court  in  

Commissioner  of  Police,  Bombay  v.  Gordhandas  Bhanji,  AIR  

1952  SC  16;  Bahadursinh  Lakhubhai  Gohil  v.  Jagdishbhai  M.  

Kamalia & Ors., AIR 2004 SC 1159;  and Pancham Chand & Ors.  

v. State of Himachal Pradesh & Ors., AIR 2008 SC 1888, observing  

that an authority vested with the power to act under the statute alone  

should  exercise  its  discretion  following  the  procedure  prescribed  

therein and interference on the part of any authority upon whom the  

statute does not confer any jurisdiction, is wholly unwarranted in law.  

It violates the Constitutional scheme.   

28. In  view  of  the  above,  the  legal  position  emerges  that  the  

authority  who  has  been  vested  with  the  power  to  exercise  its  

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discretion  alone  can  pass  the  order.  Even  senior  official  cannot  

provide for any guideline or direction to the authority under the statute  

to act in a particular manner.  

It  cannot be said that  the Circular  dated 29.5.2008 was either  

issued illegally or without any authority.  Admittedly, the DGCA is  

competent to issue special directions and the same had been issued by  

him, though may be with the consultation of some other authorities.  

However, it  cannot be denied that the DGCA was  involved in the  

process. The authority which had been in consultation with the DGCA  

had been provided for under the business rules and it cannot be held  

by any stretch of imagination that the Ministry of Civil Aviation is not  

an authority concerned with the safety measures involved herein. The  

authorities are competent to issue the said regulations. Exercise of the  

power  is  always  referable  to  the  source  of  power  and  must  be  

considered in conjunction with it. In view of the fact that the source of  

power exists, there is no occasion for the Court to link the exercise of  

power to another source which may invalidate the exercise of power.

29. The  High  Court  has  observed  that  in  the  instant  case,  the  

reviving of AIC 28/92 is in question, even the keeping in abeyance of  

the CAR, whether by the DGCA or other competent authority, is in  

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issue.  However, it is merely an interregnum arrangement till the new  

CAR comes into picture.  After keeping the CAR 2007 in abeyance,  

an Expert Committee was constituted which held a large number of  

meetings  with  various  stakeholders.  The  final  report  has  been  

submitted by the Expert Committee to the Government in September  

2010  for  consideration.   The  Government  has  accepted  FDTL  

Committee  report  and  advised  the  DGCA  to  issue  draft  CAR  for  

consultation  and  the  same  has  been  put  on  the  DGCA  website  

inviting comments or objections within a period of 30 days.  It  is a  

question of challenging the public policy and it  is  well  settled that  

public authorities must be given a very long rope, full freedom and  

full liberty in framing policies, though the discretion of the authorities  

cannot be absolute and unqualified, unfettered or uncanalised.  The  

same can be the subject matter of judicial scrutiny  only in exceptional  

circumstances where it can be shown to be arbitrary, unreasonable or  

violative of the statutory provisions. More so, the courts are not well  

equipped  to  deal  with  technical  matters,  particularly,  where  the  

decisions are based on purely hyper-technical issues.  The court may  

not be able to consider competing claims and conflicting interests and  

conclude on which way the balance tilts.  

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More so,  the whole exercise has been done to bring a  

new  CAR  into  existence  for  which  the  process  has  already  been  

initiated  and  a  draft  CAR  was  put  on  the  DGCA  website  giving  

opportunity to all   concerned to submit their  objections/suggestions  

within a period of  30 days and a new CAR is likely to come into  

existence  very  soon.   

30.        The  High Court held that DGCA is directly under the control  

of Civil Aviation Ministry and considering the rules of business, the  

Government being the  appropriate authority to formulate necessary  

policy in relation to the subject matter in issue, and the Government in  

its  wisdom  having  decided  after  taking  into  consideration  all  the  

representations  made  from  various  sections,  has  appointed  a  

Committee to formulate CAR in relation to the matters enumerated  

under order dated 29.5.2008, and on that count, the DGCA in exercise  

of its power under Rule 133A r/w Rule 29C of the Rules 1937 issued  

the Circular dated 29.5.2008, and therefore, no fault can be found with  

the same.   

Being so, we are in agreement with the finding recorded by  

the High Court that even assuming that there is a challenge to the  

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communication  dated  2.6.2008  in  the  petition,  the  same  is  to  be  

considered as devoid of substance as undisputedly, the DGCA has  

ample power to issue such instructions or directions in exercise of its  

power under the Rule 133A r/w Rule 29C of the Rules 1937. Since,  

the appellants have not been able to point out any provision even for  

issuance of instructions for such interregnum period, the provisions  

of CAR of 13.10.2006 would be attracted in the matter.     

31. In view of the above, we do not find any force in the appeal, it  

is accordingly dismissed.  No order as to costs.  Before parting with  

the case, we would like to point out that in the facts and circumstances  

of the case, as the process to bring new CAR in existence is going on,  

the same should be concluded expeditiously in accordance with law.  

…………….………………J. (P. SATHASIVAM)

……………………………..J. (Dr. B.S. CHAUHAN)

New Delhi,  May  3, 2011.

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