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TMI Blog2011 (5) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... elates 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 However, the said writ petition stood dismissed as withdrawn vide order dated 31.1.2008.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. 7. We have considered the rival submissions made by learned counsel for the parties and perused the record. Relevant Statutory Provisions: 8. It may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally 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 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 subrule (1) shall be issued after placing the draft on the website of the Directorate General of Civil Aviati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/92 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. 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 cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; 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 rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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