Karnataka High Court
D A Palanivelu vs Government Flying Training School on 16 December, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
-1-
NC: 2024:KHC:51816
WP No. 6098 of 2024
C/W WP No. 8690 of 2024
WP No. 14244 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 6098 OF 2024 (GM-RES)
C/W
WRIT PETITION NO. 8690 OF 2024 (GM-RES)
WRIT PETITION NO. 14244 OF 2024 (GM-RES)
IN WP No. 6098/2024:
BETWEEN:
M/S AGNI AERO SPORTS
ADVENTURE ACADEMY (P) LTD
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING OFFICE AT
JAKKUR AERODROME, 12TH KM,
BELLARY ROAD, BANGALORE 560 064
REPRESENTED BY ITS DIRECTOR MR M K SRIRAM.
Digitally signed by B ...PETITIONER
K
MAHENDRAKUMAR (BY SRI. DHRUV M PATWARI.,ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. GOVERNMENT FLYING TRAINING SCHOOL
12th KM BELLARY ROAD,
JAKKUR AERODROME, BANGALORE 560064
REPRESENTED BY THEIR DIRECTOR.
2. AIR TRAFFIC CONTROLLER
12TH KM BELLARY ROAD
GOVERNMENT FLYING TRAINING SCHOOL,
JAKKUR AERODROME, BANGALORE 560064
REPRESENTED BY DUTY AIR TRAFFIC CONTROLLER.
-2-
NC: 2024:KHC:51816
WP No. 6098 of 2024
C/W WP No. 8690 of 2024
WP No. 14244 of 2024
3. OFFICE OF THE DIRECTOR OF AIRWORTHINESS
DGCA REGIONAL OFFICE,
VIMANAPURA POST,
HAL AIRPORT, TECHNICAL BLOCK,
BANGALORE 560017
REPRESENTED BY THE DIRECTOR.
4. OFFICE OF THE DEPUTY DIRECTOR GENERAL
OF AIRWORTHINESS
OPP SAFDARJUNG AIRPORT,
NEW DELHI 11000 INDIA
REPRESENTED BY
THE DEPUTY DIRECTOR GENERAL.
...RESPONDENTS
(BY SRI. K ARAVIND KAMESH., ASG A/W
SRI. H SHANTHI BHUSHAN, DSGI FORR1 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASHING THE ORDER BARING NO. 11011(19)/1/2024 DAW-
BLR DATED 14.02.2024 (ANNEXURE-A1) ISSUED BY
RESPONDENT NOS.3 AND THE SUBSEQUENT DIRECTIONS
AND ORDERS DATED 21.02.2024 AND 23.02.2024 ISSUED BY
THE RESPONDENTS NOS.3, 1 AND 3 AT ANNEXURE A2,
ANNEXURE-A3 AND ANNEXURE-A4.
IN WP NO. 8690/2024
BETWEEN:
1. D A PALANIVELU
S/O ARMUGHAM,
AGED ABOUT 72 YEARS,
2. KUDIMADA SOMANNA SUBBAYYA
AGED 57 YEARS,
S/O K B SOMANNA,
BOTH O/A SURYA RATHNA AVENUE,
NO 51/25, RICHMOND ROAD,
BANGALORE 560 025.
...PETITIONERS
(BY SRI. ARVIND SHARMA, ADVOCATE FOR
-3-
NC: 2024:KHC:51816
WP No. 6098 of 2024
C/W WP No. 8690 of 2024
WP No. 14244 of 2024
SRI. ARNAV A BAGALWADI., ADVOCATE FOR
SMT. KEERTHANA NAGARAJ, ADVOCATE AND
SMT. ASHWINI N, ADVOCATE)
AND:
1. GOVERNMENT FLYING TRAINING SCHOOL
JAKKUR AERODROME, BANGALORE 560064
REPRESENTED BY THEIR DIRECTOR.
2. AIR TRAFFIC CONTROLLER
GOVERNMENT FLYING TRAINING SCHOOL,
JAKKUR AERODROME BANGALORE 560064
REPRESENTED BY DURTY AIR TRAFFIC CONTROLLER.
3. OFFICE OF THE DIRECTOR OF AIROWRTHINESS
DGCA REGIONAL OFFICE,
HAL AIRPORT TECHNICAL BLOCK,
BANGALORE 560017
REPRESENTED BY THE DIRECTOR.
4. OFFICE OF THE DEPUTY DIRECTOR GENERAL
OF AIRWORTHINESS
OPP SAFDARJUNG AIRPORT,
NEW DELHI 110003 INDIA,
REPRESENTED BY
THE DEPUTY DIRECTOR GENERAL.
...RESPONDENTS
(BY SRI. K ARAVIND KAMATH., ASG A/W
SRI. H SHANTHI BHUSHAN, DSGI)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE NOTIFICATION DATED 14/02/2024
BEARING NO. BLR-11011(19)/1/2024-DAW-BLR
(ANNEXURE-A) PASSED BY THE R4.
IN WP NO. 14244/2024
BETWEEN:
1. D A PALANIVELU
S/O ARMUGHAM
AGED ABOUT 72 YEARS
-4-
NC: 2024:KHC:51816
WP No. 6098 of 2024
C/W WP No. 8690 of 2024
WP No. 14244 of 2024
2. KUDIMADA SOMANNA SUBBAYYA
AGED ABOUT 57 YEARS
S/O K B SOMANNA
BOTH O/A SURYA RATHNA AVENUE
NO.51/25, RICHMOND ROAD
BANGALORE-560025.
...PETITIONERS
(BY SRI. ARVIND SHARMA, ADVOCATE FOR
SRI. ARNAV A BAGALWADI., ADVOCATE FOR
SMT. KEERTHANA NAGARAJ, ADVOCATE AND
SMT. ASHWINI N, ADVOCATE)
AND:
1. DIRECTOR OF AIRWORTHINESS
DGCA REGIONAL OFFICE
HAL AIRPORT, TECHNICAL BLOCK
BANGLAORE-560017
(AMENDMENT OF CAUSE TITLE CARRIED OUT
ON 28.06.2024)
2. DEPUTY DIRECTOR OF AIRWORTHINESS
DGCA REGIONAL OFFICE
HAL AIRPORT, TECHNICAL BLOCK
BANGALORE-560017
(AMENDMENT OF CAUSE TITLE CARRIED OUT
ON 28.06.2024)
3. OFFICER OF AIRWORTHINESS
DGCA REGIONAL OFFICE
HAL AIRPORT, TECHNICAL BLOCK
BANGALORE-560017
(AMENDMENT OF CAUSE TITLE CARRIED OUT
ON 28.06.2024)
4. THE DEPUTY DIRECTOR GENERAL DGCA
DGCA REGIONAL OFFICE
HAL AIRPORT, TECHNICAL BLOCK
BANGALORE-560017
(AMENDMENT OF CAUSE TITLE CARRIED OUT
ON 28.06.2024)
5. B BHASKAR
AIRCRAFT MAINTENANCE ENGINEER
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NC: 2024:KHC:51816
WP No. 6098 of 2024
C/W WP No. 8690 of 2024
WP No. 14244 of 2024
C/O AASAA PVT LTD
HANGAR NO.1, JAKKUR AERODROME
12TH KM BELLARY ROAD
BENGALURU-560064.
6. AGNI AERO SPORTS ADVENTURE
ACADEMY PVT,LTD(AASAA)
HANGAR NO.1, JAKKUR AERODROME,
12TH KM BELLARY ROAD,
BENGALURU-560064.
(REGISTERED UNDER COMPANIES ACT 1994)
...RESPONDENTS
(BY SRI. K ARAVIND KAMATH, ASG A/W
SRI. M UNNIKRISHNAN, CGC FOR R1 TO R4;
SRI. DHRUV M PATWARI, ADVOCATE FOR R5 & R6)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT
QUASHING THE SHORTFALL DTD 08.04.2024 (ANNEXURE-
K) PASSED BY THE R-1 TO 3 AND ETC.DIRECT,
QUASHING THE SHORTFALL DTD 19.04.2024 (ANNEXURE-
M) PASSED BY THE R-1 TO 3 AND ETC.
THESE PETITIONS, COMING ON FOR FURTHER
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
ORAL ORDER
The facts involved in W.P. Nos. 6098/2024, 8690/2024, and 14224/2024 are common and, hence, are considered together and disposed of accordingly. The facts of W.P. No. 8690/2024 are taken up for reference in this order as the main petition, as the counsel for the petitioners primarily canvassed arguments in this matter.
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2. The petitioners are aviation enthusiasts and co- owners/operators of a microlight aircraft bearing registration No. VT-USP (Cert. No. UL-88/2) under Category 'A.' The aircraft operate out of Jakkur Aerodrome, Bengaluru. The petitioners are challenging the order dated 14.02.2024, bearing No. BLR- 11011(19)/1/2024-DAW-BLR, issued by respondent No. 4, as well as the email dated 21.02.2024 and the notification/letter dated 22.02.2024 issued by respondents No. 3 and 1, respectively. These communications have restrained the petitioners from conducting any flying activities by directing respondent No. 2 to withhold ATC clearances for microlight aircraft flying operations at Jakkur Aerodrome, Bengaluru.
3. Respondent No. 1 is the Government Flying Training School at Jakkur, Bengaluru; respondent No. 2 is the Air Traffic Controller (represented by the Duty Air Traffic Controller at the Jakkur Flying School); respondent No. 3 is the Office of the Director of Airworthiness (represented by the Director at the regional office of the DGCA, HAL Airport, Bengaluru); and respondent No. 4 is the Office of the Deputy Director General of Airworthiness (represented by the Deputy Director General located in Delhi).
4. The petitioners in W.P. Nos. 6098/2024 and 8690/2024 are aggrieved that the respondent authorities, without affording them an opportunity to be heard and in violation of the principles of natural justice, have ordered them to cease flying until compliance with the impugned notification dated 14.02.2024, regarding the use -7- NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 of fuel in aircraft, is reported. The petitioners contend that the said notification was issued in excess of the authority conferred by the Aircraft Act, 1934, and is inapplicable to their aircraft, as the guidelines/directions in the notification pertain to engines different from those fitted in their aircraft. Additionally, in W.P. No. 14224/2024, the petitioners challenge the non-renewal of the Special Certificate of Airworthiness for their aircraft.
5. The respondent authorities contend that the directions/guidelines impugned in these writ petitions were issued in the interest of aviation safety by the competent authority under the Aircraft Act, 1934, and the rules framed thereunder. They argue that these directions are issued furtherance of the obligations of the Union of India as a signatory to the International Civil Aviation Convention of 1944.
Submissions (Arguments on Behalf of the Petitioners in W.Ps. No. 6098 and 8690/2024)
6. Sri Arvind Sharma, learned counsel for the petitioners, argued that the impugned notification/letter dated 14.02.2024, issued by respondent No. 4, is beyond its authority and lacks jurisdiction. He contended that respondent No. 4 issued the impugned letter under Section 5A of the Aircraft Act, 1934, which empowers the Director General of Civil Aviation (DGCA) or an officer specifically authorized by the Central Government to issue directions to ensure the safety of aircraft operations. However, respondent No. 4 has failed to produce any order or notification granting it specific authority under Section 5A.
-8-NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 6.1. The learned counsel further argued that the notification dated 22.02.2024, issued by respondent No. 1 instructing respondent No. 2 to withhold ATC clearances for the petitioners, also lacks jurisdiction. He contended that respondent No. 1 could not assume powers vested in the DGCA and has provided no evidence of being specially empowered to issue such directions.
6.2. He also submitted that the impugned notification is inconsistent with the Aircraft Act, 1934, as it does not pertain to any matters specified under Section 5(2). Furthermore, under Rule 133A(1) of the Aircraft Rules, 1937, directions or orders must be issued as Civil Aviation Requirements (CARs) to aircraft owners and maintenance engineers. These CARs are required to be officially published, but the impugned notification was merely issued on respondent No. 4's letterhead and not through publication in the official gazette or by a formal order.
6.3. The learned counsel further argued that the respondents failed to comply with Rule 133A(2), which mandates that draft CARs must be published on the DGCA's website for 30 days to invite objections and suggestions from affected persons. While the proviso to Rule 133A(2) allows dispensing with this requirement through a written order, no such order has been produced. He asserted that this failure to follow the prescribed procedure, including providing notice to the petitioners, renders the impugned notification invalid.
6.4.The learned counsel also argued that the denial of flight clearance to the petitioners' aircraft by respondents No. 1 to 3, -9- NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 through the letter/notification dated 22.02.2024, without affording the petitioners a reasonable opportunity to be heard and without conducting an inquiry to ascertain their compliance with regulatory requirements or the benefit of exemptions, violates the principles of natural justice, procedural fairness, and the inherent expectation of reasonableness in State actions.
6.5. Finally, the learned counsel for the petitioners argued that the impugned notification dated 14.02.2024 was issued in respect of aircraft fitted with Rotax 912 'S' series engines, which are different from the Rotax 912 'UL' series engines installed in the petitioners' aircraft. Therefore, the notification is inapplicable to the petitioners. The learned counsel further strenuously contended and submitted a sworn affidavit affirming that the petitioners have used the appropriate grade of fuel in their aircraft, in compliance with the specifications provided by the engine manufacturers.
(Arguments on Behalf of the Petitioners in W.P. No. 14224/2024) 6.6. Learned counsel for the petitioners submitted that the petitioners' aircraft, in accordance with the Civil Aviation Requirement (CAR) dated 27.12.2017 (F. No. 11-690/F-XXIII/2017- AI(2)) regarding the issuance/renewal of the Special Certificate of Airworthiness, was due for annual renewal on 30.03.2024. The maintenance agency completed the necessary procedures and submitted the renewal application on 27.03.2024 to the Directorate General of Civil Aviation (DGCA), along with the test flight schedule, report, and compliance certificate.
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 6.7. However, respondent No. 4 issued a notification dated 14.02.2024 prohibiting the operation of all Indian-registered aircraft using Indian MoGas (Motor Gasoline). This prohibition was based on a finding that one operator used an incorrect grade of fuel, raising safety concerns for civilian operations.
6.8. The learned counsel argued that the shortfalls communicated to the petitioner on 08.04.2024, 19.04.2024, and 21.05.2024 do not align with the requirements set out in the CAR for renewing the Special Certificate of Airworthiness. He asserted that the petitioner's aircraft has consistently remained airworthy since its registration on 18.01.2008. He further alleged that these shortfalls are unrelated to the renewal process and demonstrate mala fide intent and arbitrariness by respondent No. 3. The learned counsel contended that the actions were intended to circumvent the interim order of this Court dated 25.03.2024, which permitted the petitioners to operate the aircraft. Thus, the actions are excessive, illegal, and liable to be set aside.
(Arguments on Behalf of the Respondents)
7. Sri K. Arvind Kamath, learned Additional Solicitor General (ASG) for the respondents, submitted the following:
7.1. The notification dated 14.02.2024 was issued under Section 5A of the Aircraft Act, 1934, which empowers the DGCA or an officer specially authorized by the Central Government to issue directions in compliance with international norms, including the International Civil Aviation Convention of 1944.
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 7.2. Under Rule 29C of the Aircraft Rules, 1937, the DGCA can prescribe standards and procedures for air safety and issue directions in the nature of Civil Aviation Requirements (CAR). Rule 49D allows for modifications to ensure the safety of aircraft and accessories if a defect is identified. Rule 50A provides for the issuance or validation of certificates of airworthiness, while Rule 52 sets acceptable standards for modifications and repairs.
7.3. The learned ASG submitted that respondent No. 4 acted within its authority, as conferred by the Deputy Director of Civil Aviation, under the oversight of the DGCA and the Government of India. He argued that the authority to issue such notifications stems from Section 5A of the Aircraft Act, read with Rule 133A of the Aircraft Rules and DGCA CAR (Section 2 - Series M, Part I).
7.4. The petitioner's aircraft is fitted with a Rotax 912 UL- series engine, which is uncertified and prone to stoppages, as acknowledged in the manufacturer's manual. The manual explicitly states that the engine has not undergone aeronautical safety or durability testing and does not meet aircraft certification standards. It further emphasizes that, where legal regulations differ from the manual's instructions, the more stringent regulations must be followed.
7.5. The learned ASG contended that even if the petitioner used the proper fuel grade, the uncertified nature of the engine prohibits its operation with Indian MoGas.
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 7.5.1. The DGCA has conducted a preliminary investigation and determined that the Indian MoGas was unsuitable for the Indian climate, particularly for aircraft fitted with Rotax engines, which have had a history of frequent accidents. Consequently, the prohibition on using Indian MoGas was applied uniformly to all aircraft, regardless of the specific Rotax 912 engine model used.
7.5.2. Additionally, the Ministry of Petroleum has confirmed that Indian MoGas is produced exclusively for the automobile industry and is unsuitable for aircraft. The learned ASG argued that the prohibition was issued in the interest of aviation safety and was supported by scientific findings, and it was therefore deemed expedient to overhaul the engines fitted to the said microlight aircraft.
7.6. The petitioners failed to comply with CAR requirements dated 23.07.1999, 27.12.2017, and 28.12.2018. The observations and shortfalls communicated on 08.04.2024, 19.04.2024, and 21.05.2024 were critical to ensuring airworthiness and could not be ignored.
7.7. The learned ASG refuted the allegations of mala fide intent. He argued that the non-renewal of the Special Certificate of Airworthiness was based on technical deficiencies and safety concerns. The shortfalls raised by the respondents were legitimate and could not be quashed solely because they were not raised previously. The non-renewal was not connected to W.P. No. 8690/2024 and was neither arbitrary nor illegal.
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 In support, reliance is placed upon the following:
1. Centre for Public Interest Litigation v. Union of India, (2016) 6 SCC 408.
Issues
8. Upon hearing the learned counsels and perusing the material on record, the following issues arise for consideration:
i. Whether the impugned notification dated 14.02.2024, passed by respondent No. 4, exceeds the jurisdiction conferred on it by the Aircraft Act, 1937?
ii. Whether the impugned notification dated 14.02.2024 is liable to be quashed on the grounds that it is vague, excessive, and arbitrary, as it is purportedly inapplicable to the petitioners, considering that the petitioners' aircraft are fitted with engines different from those referred to in the impugned notification?
iii. Whether the impugned letter/email dated 22.02.2024, issued by respondent No. 1, pursuant to the directions issued by respondents No. 2 and 3, stopping the petitioners from flying their aircraft without affording them a reasonable opportunity to be heard, is violative of the principles of natural justice?
iv. Whether the shortfalls raised by the respondents regarding the non-renewal of the certificate of airworthiness for the petitioners' aircraft on 08.04.2024, 19.04.2024, and 21.05.2024, are excessive and plagued with arbitrariness and unreasonableness?
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 v. What order?
Discussion and Analysis
9. All the issues are answered collectively for the sake of convenience.
10. The petitioners are co-owners of a microlight sport aircraft with serial number AGNI/701/056-11-2006 (manufacturer's designation: ZENAIR STOL CH-701), bearing registration VT-USP and holding Certificate No. UL-88/2 under Category 'A.' The aircraft operates out of Jakkur Aerodrome, Bengaluru, and is fitted with a Rotax 912 'UL' Series uncertified engine. Based on the affidavit dated 04.06.2024, sworn by the petitioners in W.P. No. 6098/2024, it can be reasonably inferred that the fuel used in their aircraft contains no ethanol. Notably, the respondents have not produced any evidence to contradict the contents of the affidavit.
11. The Certificate of Registration for the petitioners' aircraft, issued by the Director General of Civil Aviation (DGCA) on 18.01.2008, shows that the aircraft has consistently been granted annual certificates of airworthiness. These certificates deemed the aircraft fit for civilian aviation operations until 30.03.2024, when the respondents refused renewal, pending compliance with the final list of the impugned shortfalls notified on 21.05.2024.
12. The non-renewal of the Certificate of Airworthiness allegedly stems from the impugned notification dated 14.02.2024 (No. BLR-11011(19)/1/2024-DAW-BLR) issued by respondent No. 4, which has led to this litigation.
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024
13. Upon reviewing the notification dated 14.02.2024, it is noted that certain aircraft models--viz, the Tecnam P2006T and Tecnam 2008 8JC--fitted with Rotax 912 series engines certified by the European Union Aviation Safety Agency (EASA), are approved to use Indian MoGas (Motor Gasoline) conforming to IS:
2796:2008 specifications (hereinafter referred to as 2008 MoGas), permitting up to 5% ethanol. However, this type of MoGas is currently unavailable, as Oil Manufacturing Companies (OMCs) are now producing MoGas with an E-10/E-20 ethanol blend under IS:
2796:2017 specifications (hereinafter referred to as the 2017 MoGas), which is intended exclusively for automobile use.
14. In light of the unavailability of 2008 MoGas, the impugned notification directed the following:
i. Prohibition of MoGas Usage: No Indian-registered aircraft of any type is permitted to use Indian MoGas with immediate effect.
ii. Engine Overhaul Requirement: Aircraft that have used Indian MoGas are prohibited from further flight unless:
• Overhauls of Rotax 912 engines with MSN 9139850 and MSN 9140358 are conducted, and the overhauling agency provides a detailed report of the engines' condition to the DGCA for review and approval.
• The DGCA evaluates the condition of other engines based on the reports from the overhauling agency and requires any necessary actions before authorizing the operation of remaining engines.
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15. This notification dated 14.02.2024 was issued by the Assistant Director of Airworthiness on behalf of the Deputy Director General of Civil Aviation.
16. In response, respondent No. 3, via email dated 21.02.2024, instructed respondent No. 1 to withhold Air Traffic Clearances for microlight flying operations. This decision followed reports that certain operators were flying despite receiving instructions to cease operations. Subsequently, respondent No. 1 issued a letter dated 22.02.2024 to respondent No. 2, directing them to deny Air Traffic Clearances for microlight operations at Jakkur Aerodrome until further notice. This effectively restricted the petitioners' flying activities.
17. The primary issue in these petitions revolves around the impugned notification, which prohibits flight operations of aircraft fitted with Rotax 912 engines. This restriction is based on the unavailability of 2008 MoGas and the production of 2017 MoGas (with 10% and 20% ethanol blends) exclusively for automotive use. The notification further mandates that all such aircraft fitted with Rotax 912 series engines undergo overhauls with MSN 9139850 and MSN 9140358 before resuming operations.
18. The petitioners, however, challenge the notification on legal grounds, arguing that:
18.1. The notification was not issued by a competent authority, violating principles of delegated legislation.
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 18.2. The notification is vague and inapplicable to the engines fitted in their aircraft.
19. On factual grounds, the petitioners contend:
19.1. The fuel used in their aircraft contains no ethanol, making the notification irrelevant and inapplicable to their situation.
19.2.The revised service manual issued by the manufacturer on 21.02.2024 explicitly permits the use of MoGas with up to 10% ethanol in the said aircraft.
20. The relevant portions of the said service manual are reproduced below for clarity:
"5.1.1) E10 (Unleaded gasoline blended with 10% ethanol) In addition to AVGAS and unleaded automotive fuel (MoGas), some of the ROTAX® Aircraft Engine Series are now approved for use with E10 (see also fuel according to local standards in chapter 5.3). Fuels that contain more than 10% ethanol blend have not been tested by BRP-
Rotax and are not permitted for use."
21. With these factual and legal challenges established, it is pertinent to note that the scope of this order is confined solely to assessing the legality of the impugned notification.
22. It is now necessary to examine the relevant provisions of the Aircraft Act, 1934 and the Aircraft Rules, 1937, which govern the aviation sector.
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 22.1. Section 4A of the Aircraft Act, 1934:
• This section establishes the Directorate General of Civil Aviation (DGCA) as the regulatory authority responsible for safety oversight and other functions as specified in the Act and its rules.
• The DGCA is headed by a Director General appointed by the Central Government.
• Sub-section (4) of Section 4A empowers the Central Government to delegate any powers vested in the Director General to another officer or authority by issuing an order published in the Official Gazette.
22.2. Section 5 of the said Act empowers the Central Government to make Rules, by way of notification in the Official Gazette, subject to previous publication thereof as specified in Section 14 of the said Act, in respect of regulating the manufacture, possession, use, operation, inter alia of any aircraft or class thereof, and for the purpose of securing the safety of aircraft operation.
Furthermore, the rules inter alia, may provide for:
• inspection and control of the manufacture, repair and maintenance of the aircraft;
• safety oversight and regulatory functions; • regulatory and oversight functions in respect of matters relating to civil aviation security;
• any matter subsidiary or incidental to the matters referred above.
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 22.3. Section 5A of the Act empowers the Director General of Civil Aviation or any other officer specially empowered by the Central Government, to issue directions, by way of order, in respect of the above recorded purposes and any other purposes specified in sub-section (2) of Section 5 of the Act, to any person(s) using the aerodrome or engaged in the aircraft operations, 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."
22.4. Rule 3A of the Aircraft Rules, 1937 deals with Delegation of Powers and further states that any power or duty conferred or imposed by the Rules on the Central Government or the Director General, may be exercised or discharged by the Central Government or the Director General respectively, or by any person authorised by the Central Government in that behalf.
22.5. Rule 50A deals with the conditions necessary for the certificate of airworthiness or special certificate of airworthiness and inspection, and overhaul of aircraft, which states that the Director General may specify conditions and standards in respect of certificate of airworthiness or special certificate of airworthiness of a particular type or class of aircraft to ensure safety of the aircraft and of persons on board the aircraft, having regard to the limitation of the aircraft.
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 22.5.1. It further states that "if at any time, the Director- General considers that any modification, repair, replacement, inspection or overhaul of any aircraft or type of aircraft or of any aircraft component or item of equipment of that aircraft or type of aircraft is necessary in the interest of safety, he may require the modification, repair, replacement, inspection or overhaul to be carried out as a condition of the certificate of airworthiness or special certificate of airworthiness remaining in force."
22.6. Rule 55 deals with suspension or cancellation of certificate of airworthiness and its continued validity. Rule 55(2) states that the Director General may suspend or cancel the certificate of airworthiness in respect of the aircraft if the Director General is satisfied that reasonable doubt exists as to the safety of the aircraft.
22.7. Rule 133A(1) empowers the Director General to issue special directions, through Notices to Aircraft Owners and Maintenance Engineers and publication entitled Civil Aviation Requirements, not inconsistent with the Aircraft Act, 1934 or the Rules, in relation to operation, maintenance, use, possession or navigation of aircraft flying in, or over India or of aircraft registered in India.
22.7.1. Sub-rule (2) of Rule 133A states that the said Civil Aviation Requirements "shall be issued after placing the draft on the website of the Directorate General of Civil Aviation for a period
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 of thirty days for inviting objections and suggestions from all persons likely to be affected thereby." The proviso to sub-rule (2) states that "the Director General may, in the public interest and by order in writing, dispense with the requirements of inviting such objections and suggestions or reduce the period for submitting such objections and suggestions."
22.7.2. Furthermore, sub-rule (3) of Rule 133A further states that every direction issued under sub-rule (1) of Rule 133A shall be complied with by the person(s) to whom such direction is issued. However, sub-rule (4) empowers the Director General to exempt any aircraft or a class thereof, or any person or class of persons from the operation of the directions issued in sub-rule (1) of Rule 133A, by general or special order in writing, subject to such extent and conditions, as may be specified in such order.
23. To understand the source of the authority behind the respondents' actions, it's important to look at the legal framework. In India, as noted in the dissenting opinion of A. Alagiriswami J. in the case of Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr (1975) 1 SCC 421, rule-making powers are granted to the State, and regulations are made by bodies established by statute. The term 'subordinate legislation' includes notifications, orders, and rules made by such bodies under the powers given to them by the parent legislation. For such regulations to have the force of law, the enabling statute or rules must clearly state this.
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024
24. It is well-established that when a law requires something to be done in a specific way, it must be done in that way and no other. This principle, explained in the case of Nazir Ahmed v. Emperor, (1936) 38 BOMLR987, means that if a method is prescribed, it must be followed, or the action cannot be taken at all.
25. While delegated legislation is open to judicial review, courts will only intervene if it is illegal, irrational, procedurally flawed, or disproportionate. Subordinate legislation can also be challenged if it doesn't comply with the statute under which it was made or contradicts another law. Judicial review will focus on "unreasonableness" in terms of manifest arbitrariness, injustice, or partiality, which the legislature could not have intended.
26. In the English case of Boddington v. British Transport Police (1998) 2 All ER 203, the House of Lords affirmed the right of the accused in criminal proceedings to contest the lawfulness of a penal by-law prohibiting smoking in a railway carriage. The court held that subordinate legislation is open to challenge on both substantive illegality (i.e., when the impugned legislation is patently unreasonable) and procedural invalidity, with both such cases constituting errors of law on the face of it.
27. In the case of Indian Newspapers v. Union of India (1985) 1 SCC 641, the Hon'ble Supreme Court distinguished between the varying degrees and thresholds of scrutiny of 'delegated legislation' and the 'exercise of discretionary administrative powers.' The Court opined that the reasonableness of delegated legislation cannot be questioned, and it could not be
- 23 -
NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 struck down merely on the ground that the delegated authority "has not taken into account relevant circumstances which the Court considers relevant." The Court held that delegated legislation would only be rendered patently invalid and liable to be quashed if it failed to consider implicitly vital facts or did not conform to the provisions of the parent legislation or the entrenched constitutional principles of Articles 14 or 19(1)(a).
27.1. On the other hand, in cases involving the review of the 'exercise of discretionary administrative powers conferred under a statute,' the Court held that administrative action may be quashed if it is without the authority of law, if it is unsupported by evidence, or if it is based on irrelevant or extraneous considerations.
28. In the case of State of U.P. v. Renusagar Power Co. (1988) 4 SCC 59, the Apex Court observed that where legislative or administrative power is exercised "on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated."
29. In the case of Shri Sitaram Sugar Company Limited and Anr. v. Union of India (1990) 3 SCC 223, the Apex Court expressed that quasi-judicial decisions are administrative decisions and are "subject to some measure of judicial procedure, such as rules of natural justice". It further held that when a function is treated as legislative, a party affected by the order has no right to notice and hearing, unless the governing statute conferred persons aggrieved with the right to hearing. The Court also emphasized that a delegate must act reasonably, within the powers granted, and
- 24 -
NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 based on relevant material facts. Expanding the grounds under which the exercise of authority by the delegate could be challenged, the Court stated that where the decisions of the delegate are oppressive, outrageous, or "do not tend in some degree to the accomplishment of the objects of the delegation", such decisions could be considered unreasonable and ultra vires. The Court referred to the case of Chief Constable of North Wales Police v. Evans [1982] UKHL 10, wherein it was held that the purpose of judicial review is to ensure that the individual receives fair treatment.
30. In the case of Hindustan Times v. State of U.P. (2003) 1 SCC 591, the Apex Court held that the "executive cannot interfere with the rights and liabilities of any person unless the legality thereof is supportable in a court of law".
31. The Hon'ble Supreme Court in Harla v. State of Rajasthan (AIR 1951 SC 467) emphasized that the reason behind the requirement for the publication of rules is that natural justice requires that, before a law becomes operative, it must be broadcast in some recognizable way so that all people may be aware of it, or at the very least, there must be a special rule, regulation, or customary channel through which such knowledge can be acquired with due and reasonable diligence. The rule of audi alteram partem includes the right to know adverse evidence, the right to present a case, the right to rebut evidence, the right of cross-examination, the right to legal representation, and the right to reasoned decisions.
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024
32. Furthermore, the scope of the exercise of administrative authority is adequately outlined in the decision of the Apex Court in St. John's Teachers Training Institute v. Regional Director, NCTE (AIR 2003 SC 1533), where it was observed that the power to make subordinate legislation (the exercise of administrative authority herein) is derived from the provisions of the enabling Act, and that discretion conferred on an administrative agency to execute such legislative policy must be exercised within the framework of that policy.
33. In a case where the Rules framed under a Statute related to the manufacture and sale of liquor, including country liquor, were challenged by the licensee regarding the non-renewal of the license due to the ethyl alcohol content of the manufactured toddy exceeding a threshold specified in the Rules, the Apex Court in State of Kerala and Ors. v. Unni and Ors. (2007) 2 SCC 365 observed that when the State intended to impose a condition through subordinate legislation, and non-compliance with that condition would result in penal consequences, the conditions must be reasonable, definite, and not vague. The Court further relied on its earlier decision in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala (AIR 2006 SC 3480), wherein it was observed that rules framed by the Executive and conditions imposed by administrative authorities must not contravene the constitutional or statutory scheme.
34. In the case of Ganpati Singhji v. State of Ajmer and Anr. (1954) 2 SCC 819, rules were framed under the Ajmer Laws
- 26 -
NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 Regulation, 1877 by the Chief Commissioner of Ajmer for the regulation of cattle and other fairs. The rules required persons desirous of holding fairs to obtain the requisite permits from the District Magistrate. However, the appellant applicants were refused such permits on the ground that no more permits would be issued to private individuals, and permits would only be issued to local bodies.
34.1 In this case, the relevant enabling sections 40 and 41 of the Regulation (Regulation 3 of 1877) empowered the Commissioner to make rules regarding the maintenance of watch and ward, the establishment of proper conservancy and sanitation at fairs and other large public assemblies, and to impose taxes on attendees and punishments for breaches of the rules. However, the rules framed under these sections empowered the District Magistrate to:
• Satisfy himself that applicants were in a position to establish a proper system of conservancy and sanitation at the fair. • Revoke any permit without assigning any reasons or giving any prior notice.
34.2. The Apex Court opined that the effect of these rules was to further sub-delegate to the District Magistrate the authority conferred on the Commissioner to assess the applicants' systems for establishing conservancy at fairs, which was ultra vires the parent Regulation of 1877. Furthermore, the Court held that the Commissioner could not, by framing rules, supplant the right of appropriately placed applicants to hold fairs and delegate to a
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 subordinate authority the power to arbitrarily curtail the applicants' rights to hold the fair.
35. In S. Samuel MD Harrisons Malayalam v. Union of India (2004) 1 SCC 256, the Apex Court observed the following:
i) Delegation of authority must be authorized by statute--
either expressly or by necessary implication;
ii) A statutory power to function, even if expressed in wide general terms, does not necessarily extend to all matters;
iii) Implied power to delegate is rarely found in peacetime legislation.
36. In Pradyat Kumar v. Chief Justice of Calcutta High Court (AIR 1956 SC 285), the petitioner was dismissed on grounds of misconduct by the Chief Justice of the Calcutta High Court. The Apex Court was asked to address the questions:
• "Did the Chief Justice of the High Court have the power under the law to dismiss the petitioner?" and • "Even if he had the power, could he delegate the inquiry into the charges to another judge, or should he have conducted the inquiry himself?"
36.1. Affirming the Chief Justice's authority to dismiss the Registrar and Accountant General, the Apex Court held that while the power to appoint and dismiss an officer is an administrative and not a judicial power, the principles of natural justice and a procedure simulating judicial standards must be followed in
- 28 -
NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 exercising it. The Court concluded that "what cannot be delegated, except where the law specifically so provides, is the ultimate responsibility for the exercise of such power." Furthermore, a functionary deciding an administrative matter is free to gather relevant material in a convenient manner, provided the affected party is given a fair opportunity to correct or contradict any prejudicial material.
37. In Barium Chemicals v. Company Law Board (AIR 1967 SC 295), the Apex Court observed that as a general rule, "a discretion conferred by a statute on any authority is intended to be exercised by that authority alone and by no other. However, this intention may be negated by contrary indications in the language, scope, or object of the statute. The construction that best achieves the purpose and object of the statute should be adopted".
38. In Marathwada University v. Seshrao Balwant Rao Chavan (1989) 3 SCC 132, the Hon'ble Supreme Court affirmed the principle emphasized in Halsbury's Laws of England that there is a "strong presumption against construing a grant of legislative, judicial, or disciplinary power as impliedly authorizing sub- delegation; the same may be said of any power the exercise of which the designated body should address its own mind."
39. The legal principles established in the cited decisions are summarised as follows:
39.1. Delegation of statutory authority must be explicitly authorized by the enabling statute or by necessary implication.
- 29 -
NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 Broad statutory powers do not automatically extend to all matters, and implied delegation is uncommon in peacetime legislation (S. Samuel MD Harrisons Malayalam v. Union of India, supra).
39.2. The power to exercise discretion conferred by statute is intended to be exercised by the designated authority, and cannot be delegated unless the statute specifically permits it. In administrative matters, the affected party must have a fair opportunity to challenge any prejudicial material (Pradyat Kumar v. Chief Justice of Calcutta High Court, supra).
39.3. While administrative powers such as appointments or dismissals can be exercised by designated authorities, they must comply with principles of natural justice. Ultimate responsibility for such decisions cannot be delegated (Pradyat Kumar v. Chief Justice of Calcutta High Court, supra).
39.4. A discretion conferred by a statute should be exercised by the authority designated under the statute. Any delegation of that power must be consistent with the language, scope, and object of the statute, and sub-delegation is generally disallowed unless explicitly stated in the statute (Barium Chemicals v. Company Law Board, supra).
39.5. There is a strong presumption against the implied authorization of sub-delegation in matters involving legislative, judicial, or disciplinary power, unless the statute expressly permits it (Marathwada University v. Sheshrao Balwant Rao Chavan, supra).
- 30 -
NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 39.6. It is needless to mention that any state action demands fairness and reasonableness. The latter inheres in itself the principle of non-arbitrariness.
39.7. Any administrative decisions that affect a person's rights must follow the principles of fairness and natural justice. If conditions are imposed with potential penalties for non- compliance, these conditions must be clear, specific, and reasonable. Those affected should clearly understand the conditions and their relevance. If penalties are involved, the authorities must give the affected parties a fair chance to be heard. Penalties cannot be based on vague reasons, and any uncertainty in the law should work in favor of the affected individuals, helping them distinguish between what is legal and illegal (State of Kerala and ors v. Unni and Ors., supra).
40. Under Section 5A of the Aircraft Act, 1934, the Director General of Civil Aviation (DGCA) has the authority to regulate specific matters. This power can only be delegated to a subordinate officer who has been specially empowered by the Central Government. If a subordinate officer, who is not specially empowered, issues directions on these matters, it creates a fundamental legal issue and undermines their jurisdiction. Any action taken without proper jurisdiction is open to challenge.
41. Additionally, Rule 133A(2) of the Aircraft Rules, 1937 requires the publication of Civil Aviation Requirements (CAR) before they take effect, except in urgent cases where a written order can justify skipping the publication. Therefore, since the Aircraft Act only allows the DGCA to delegate authority to specially
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 empowered officers, a subordinate officer cannot exercise this power unless explicitly authorized.
42. Further on the issue of interpretation, it has been held by the Apex Court in the cases of Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd.I (1987) 1 SCC 424 and more recently in, Renaissance Hotel Holdings Inc. v. B Vijaya Sai and Ors., (2022) 5 SCC 1, that while interpreting the provisions of a statute, "the textual interpretation should be matched with the contextual one. The Act must be looked at as a whole and it must be discovered what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."
43. A perusal of sub-section (2) of Rule 133A of the Aircraft Rules, 1937 reveals that the Executive has envisaged procedural safeguard in mandating placing of the draft of CAR on the website of the DGCA prior to their publication so to enable those who may be prejudiced by the issue of CAR be given a reasonable opportunity to raise objections and make suggestions. By applying the principle of contextual interpretation of text, any instance of exercise of authority in contravention of the procedural safeguard in sub-section (2) or the proviso thereunder justifying the issue of CAR without issuing order in writing, would render such statutory safeguards nugatory. Therefore, exercise of authority in
- 32 -
NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 contravention of the statutory framework would be vitiated by an incurable procedural irregularity and render it liable to be quashed.
44. Furthermore, in a judicial review of administrative actions, Courts try to find out the dominant purpose which impelled the impugned administrative action. A perusal of the impugned notification dated 14.02.2024 reveals that in light of the unavailability of 2008 MoGas (which contained a percentage blend of 5% ethanol) on account of stoppage in production of the same and the fact that the Oil Manufacturing Companies were producing only the 2017 MoGas (which contained a percentage blend of 10%
- 20% of Anhydrous Ethanol and for use in Automobiles only), the issuing authority had deemed it expedient to order the overhaul of engines of the aircraft models Tecnam P2006T and Tecnam 2008 8JC fitted with Rotax 912 series engines - which were certified for the use of only the 2008 MoGas, with MSN 9139850 and MSN 9140358. However, in the instant case, the petitioners have sworn to an affidavit that the fuel used in their aircraft does not contain any percentage blend of ethanol. Furthermore, the respondents have not adduced any evidence to the contrary.
45. Hence, this Court is of the opinion that the impugned notification dated 14.02.2024 is inapplicable to the case of the petitioners. It is pertinent to note at this stage that non-compliance with the impugned order dated 14.02.2024 and letter dated 22.02.2024 would have let to the detention of the aircraft of the petitioners under Section 8 of the Act, 1934 and exposed the
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 petitioners under Section 10 of the Act to imprisonment for a period which may extend to two years, or with fine may extend to one crore rupees, or with both. Moreover, the engines fitted on to the aircraft of the petitioners belong to the 'UL' series - uncertified, and have a more leeway in seeking exemption from compliance with conditions that may otherwise have been imposed on other engines in the Rotax 912 series. Thus, the impugned notification and order were unreasonable and vague, and any such condition of compliance imposed upon the petitioners would be unsustainable in law.
46. In this case, the learned Additional Solicitor General (ASG) argues that the impugned orders were issued to ensure the safety and security of civil aviation, citing past accidents as the reason for the impugned measures. However, the learned ASG has not provided any reports or material from the Bureau of Civil Aviation Security or the Aircraft Accidents Investigation Bureau to support these claims.
47. The petitioners were not given a fair opportunity for a hearing when the order was issued, which grounded their aircraft until engine overhauls were completed. This lack of procedural fairness is a violation of the principles of natural justice and makes the decision open to challenge, and liable to be quashed.
48. It is important to note that when defending such administrative actions, courts do not rely on "common knowledge"
or historical facts to justify decisions, as they might with legislative actions. Courts have the authority to question the exercise of
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 administrative powers, which do not have the same level of protection as legislative decisions.
49. The petitioners in W.P. No. 14224/2024 are challenging the shortfalls raised by the respondent on 08.04.2024, 19.04.2024, and 21.05.2024, arguing that they are vague, excessive, arbitrary, and illegal. Rule 15 of the Rules 1937 mandates that no aircraft shall be flown unless the aircraft possesses a valid certificate of airworthiness or special certificate of airworthiness issued by the Director General, and that the aircraft shall carry on board the same, as applicable.
50. One of the shortfalls raised on 21.05.2024 is that no evidence (fuel voucher) was provided regarding the fuel usage in the aircraft, as required by the notification No. 25012(05)/103/2023
- AW, dated 12.02.2024, which is being addressed in W.Ps. No. 6098 and 8690 of 2024.
51. During the pendency of these proceedings, the respondents have filed a memo on 01.07.2024 stating that notwithstanding the shortfalls raised earlier, they would consider issuing the certificate to the petitioners, provided the following shortfalls are addressed.
Sl. No. Relevant Rule Shortfalls
1. CAR sec-2 series F, Part XIV - Para 7.3.
-
The aircraft shall not be used for public The respondents are in transport or aerial work or any commercial possession of evidence to activity. the effect that the
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NC: 2024:KHC:51816
WP No. 6098 of 2024
C/W WP No. 8690 of 2024
WP No. 14244 of 2024
petitioners are flying
members of the public in
their aircraft as joy rides,
contrary to such rule. As
such the petitioners need
to give an undertaking that
they would not use the
aircraft for public transport
or any commercial
activity.
2. CAR sec-2 series F, Part XIV, Annexure
XII, Para A -
Point 3 - The operator shall maintain a Copy of evidence of
Log Book relating to the operations and having submitted to the
submit the same to the office of the jurisdictional district
District Magistrate on a quarterly basis magistrate the operator
log book relating
operations of the
petitioners' aircraft on
quarterly basis, is not
adduced.;
3. CAR sec-2 series F, Part XIV, Annexure
XII, Para A -
Point 6 - No microlight aircraft shall carry The petitioners are
any remote sensing appurtenances / regularly flying members
weapon / photography / video recording of the public in their
equipment without the express aircraft as part of
permission of MHA except that the commercial joy rides and
equipment required for the safe operation such flyers carry mobile
of the aircraft or specified in this CAR phones which have video
recording capabilities.
Flyers are neither frisked
nor checked, posing
huge security risks. The
petitioners are required
to submit the approved
copy of the security
programme approved by
the BCAS and furnish
proof of compliance with
the aforesaid rule.
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NC: 2024:KHC:51816
WP No. 6098 of 2024
C/W WP No. 8690 of 2024
WP No. 14244 of 2024
4. CAR sec-2 series X, Part VII, Para 2 -
Point XXV - Need to submit a copy of the The petitioners have to
comprehensive insurance policy covering furnish a copy of the
passengers, and their baggage crew, third comprehensive insurance
- party risks, hull loss. policy covering
passengers, baggage,
as well as third party
risks.
5. Aircraft Rules - Rule 49 I, CAR sec-2 Since the aircraft was
Series F, Part XIV page no. 2 and CAR manufactured in the year
sec-2 Series F Part XXIII Page No. 2 2007 it needs to be
Copy of Design Acceptance by AED, regularised after
DGCA and Manufacturing Approval by obtaining the necessary
DGCA (in respect of M/s. Agni Aerosports design acceptance from
Adventure Academy Pvt Ltd, Bangalore AED, DGCA, and
for Micro light ZENAIR STOL CH-701) manufacturing approval
needs to be submitted. for future aircraft
manufacturing and
details of the number of
aircraft manufactured
and sold to the owners
within India needs to be
submitted to DGCA.
It is apposite to note that the above requirement at Sr. No. 5 is relevant for the renewal of the special certificate of airworthiness and is complied with.
52. Rule 60 of the Aircraft Rules of 1937 empowers the Director General to specify standards and conditions for continuing airworthiness of the aircraft and its maintenance, including all necessary modifications and overhauls of the aircraft and its components. The learned counsel for the petitioner invites the Court's attention to CAR Section 2 - Airworthiness Series 'F' Part XXIII, dated 27.12.2017, bearing F No. 11-690/F-XXIII/2017-AI(2), issued by the DGCA, regarding the 'Issue/Renewal and Suspension of Special Certificate of Airworthiness.' Clause 8 of this
- 37 -
NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 document addresses the 'Renewal' of the Special Certificate of Airworthiness, and the relevant requirements are provided below for convenience:
8. Renewal of Special Certificate of Airworthiness. 8.1. An application for renewal of Special C of A shall be completed and submitted to concerned airworthiness officer by the owner/operator of the aircraft as per the enclosed proforma at Appendix 'C' at least 15 days prior to the expiry of the special certificate of airworthiness along with the necessary fees as per the Rule 62. The application shall be accompanied with a certificate confirming compliance and adherence in respect of the items listed in Appendix 'D' duly signed by the owner/operator.
8.2. The applicant shall make the aircraft available for reasonable period at a time and place acceptable to the DGCA for such checks and inspections as may be required. 8.3. The applicant shall establish that the aircraft is in condition of safe operation in all respects.
8.4. The applicant shall provide the necessary personnel and equipment so that required checks and inspections may be satisfactorily carried out.
8.5. All relevant records of aircraft maintenance, flight tests should be made available to the officers of DGCA at the time of inspection for renewal of Special C of A. 8.6. Documents to be provided to the DGCA for renewal of Special C of A:
8.6.1. A copy of the inspection report giving brief details of the work done since the last issue/renewal of C of A to establish that the aircraft had been maintained. This report should include the following documents:
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 i. A record of work accomplished since the last issue/renewal of the certificate;
ii. A record showing details of major checks carried out since the last issue/renewal of the certificate;
iii. A record of airframe, engine(s), and propeller(s) flying hours as follows:
a. the total flying hours for the airframe since new and the flying hours since the last renewal;
b. the total flying hours for the engine(s) since new and the flying hours since the last overhaul;
c. the total flying hours for the propellers(s) since new and the flying hours since the last overhaul;
8.6.2. A record showing compliance with:
• Airworthiness directive (if applicable); • mandatory modification issued by the manufacturer (as applicable);
• Compliance status of the manufacturer's inspection document; • Accident/Incident that the aircraft suffered and action taken; 8.6.3. A flight test report.
8.7. In case the Airworthiness Officer contemplates his final inspection of the aircraft and its documents, after the expiry of the Special C of A, or within 30 days before the expiry of special C of A then the currency of the special C of A would start from the date of inspection.
53. The learned counsel for the petitioner argues that the shortfalls raised by the respondents on 21.05.2024 are irrelevant to the renewal of the special certificate of airworthiness. These shortfalls would have been applicable if the petitioners were applying for the issuance of a new certificate. The counsel contends that the respondents have acted arbitrarily by insisting on
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 requirements meant for issuing the certificate, as outlined in Clause 4 and Clause 5 of the CAR 2017, instead of those meant for renewing an existing certificate.
54. The counsel further argues that the renewal should not have been denied based on these shortfalls. However, if the respondents believed there were serious safety violations, they could have suspended or cancelled the certificate under Rule 55 (2) of the Rules 1937 read with Clause 9 of the CAR 2017, which deals with suspension or cancellation. Any such action would have required a reasoned order and could have been challenged in judicial review.
55. The petitioner's counsel contends that the failure to cancel the certificate, despite the grounds for non-renewal, suggests mala fide intentions. The respondents' failure to act in accordance with their statutory duties under CAR 2017 goes against the principles of administrative law.
56. The learned counsel also points out that suspension or cancellation of the certificate should only occur in cases of serious non-compliance or major damage, beyond what can be addressed during routine inspections for renewal. This argument is supported by the structure of the CAR 2017, where Clause 8 (renewal) follows Clauses 4 and 5 (issuance) and precedes Clause 9 (suspension or cancellation). Clauses 6 and 7 address the validity and maintenance requirements for aircraft holding the certificate.
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NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024
57. A combined reading of Clauses 8 and 9 of CAR 2017 shows that Clause 8 requires a record of compliance with airworthiness directives, mandatory modifications, and the manufacturer's inspection documents. Clause 9.2, however, gives the Director General of Civil Aviation (DGCA) the authority to suspend or cancel the special certificate of airworthiness or require modifications or overhauls if there is reasonable doubt about the aircraft's safety. This gives the DGCA broad discretion, but any decision to suspend or cancel the certificate must be technically and legally justified, and more detailed than the shortfalls raised here. Therefore, such a decision should not have been made without first issuing a show-cause notice.
58. Engines are a critical component of aircraft, so failure to comply with engine overhaul requirements for safety would lead to a deemed suspension of the certificate under Clause 9.1. However, the learned ASG has not provided any documents or notices regarding the deemed suspension or cancellation of the certificate, or requiring an engine overhaul for compliance with the fuel usage requirement as per DGCA notification No. 25012(05)/103/2023-AW dated 12.02.2024. It is also worth noting that the order restricting the petitioner's aircraft operations, which is the subject matter of dispute in W.Ps. No. 6098 and 8690 of 2023, is dated 14.02.2024.
59. It appears that the respondents have effectively suspended the certificate by restricting the aircraft's operations, until the engines are overhauled as per the fuel usage requirement prescribed in the impugned notification/order, dated 14.02.2024.
- 41 -
NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 However, this action, under the limited process of renewing the certificate under Clause 8 of CAR 2017, is excessive, unfair, and improper. Therefore, the shortfalls raised on 08.04.2024, 19.04.2024, and 21.05.2024 should be quashed. Similarly, the shortfalls raised by the respondents vide memo dated 01.07.2024, (except the shortfall at Sl. No. 5 which is relevant and applicable to the renewal of the said certificate and duly complied with by the petitioner) should be quashed.
60. As a result, the non-renewal of the certificate is arbitrary, irrational, and motivated by mala fide intentions, making it legally unsustainable.
61. The learned Additional Solicitor General (ASG) has strongly argued that the impugned notification was issued to ensure the safety of everyone involved in aircraft operations. Therefore, this Court should not focus excessively on technicalities regarding the authority that issued the notification or on questioning the merits of the issues raised on 21.05.2024 about the non- renewal of the special airworthiness certificate.
62. However, accepting such an argument would result in immunising arbitrariness and irrationality from judicial scrutiny, when public authority is exercised on mere claims of the need for safety and security. It is well-established that under Article 226, a petition can be maintained if the grievance is legitimate and supported by law. The Court's role is to act as a safeguard against arbitrary and unreasonable government actions that infringe on personal liberty. As such, the scope of this decision is limited to the
- 42 -
NC: 2024:KHC:51816 WP No. 6098 of 2024 C/W WP No. 8690 of 2024 WP No. 14244 of 2024 issue of whether the impugned orders comply with the governing statutory framework and established legal principles. It is clarified that the respondents are free to take any further action in accordance with the law and the principles of natural justice, particularly regarding safety and security in civilian aviation.
Accordingly, I order the following:
ORDER i. The instant petitions are allowed.
ii. The impugned orders dated 14.02.2024 -
bearing No.BLR-11011(19)/1/2024-DAW-BLR and
22.02.2024 - bearing No. FTS/51/ADM/2011-12/788 are hereby quashed.
iii. The shortfalls raised by the respondents on 08.04.2024, 19.04.2024, 21.05.2024 are hereby quashed.
iv. The shortfalls raised by the respondents at Sl. Nos. 1, 2, 3 and 4 of the memo dated 01.07.2024 are hereby quashed.
v. The respondents are hereby directed to renew the special certificate of airworthiness in repect of the aircraft of the petitioner in W.P. 14244/2024, within two weeks from the date of receipt of this order.
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NC: 2024:KHC:51816
WP No. 6098 of 2024
C/W WP No. 8690 of 2024
WP No. 14244 of 2024
vi. In light of the submissions made by the
learned ASG that the impugned notification demanded prompt compliance in the interests of safety of all stakeholders involved in the civil aviation operations, liberty is nevertheless reserved with the respondents to proceed in accordance with law, and more particularly, in adherence to the principles of natural justice.
Sd/-
(HEMANT CHANDANGOUDAR) JUDGE BKM