ORDER
P.A. Mohammed, J.
1. This writ petition has been filed by an Aero and Adventure Club by name ‘Sri Chithira Aero and Adventure Club, Trivandrum’ challenging certain provisions contained in Exts. P4 and P5 directions issued by the Civil Aviation Department of the Government of India. The club is registered under the Travancore Cochin Literary Scientific and Charitable Societies Act, 1955 on 26-8-1992. The main object of the club is to promote areo sports by use of hand gliders and powered hang gliders, microlight and ultra light flying, para sailing and aqua sports activities. It claimed to be the Kerala Chapter of National Adventure Foundation, New Delhi, which is the National Apex Body to promote adventure. It is how in possession of one powered hang glider and four micro-lights. Subsequent to the registration of the club, it was granted permission to operate the flights by Airport Director, National Airport, Trivandrum by Ext. P2 order on 14-11-1992. Thereafter, by Ext. P3 certificate the Director of the Department of Tourism recognised it as a tourism unit to undertake tourism activity for development of advanture sports.
2. While the club is so engaged the first respondent Director General of Civil Aviation in exercise of powers conferred on him under Rule 133A of the Aircraft Rules 1937 issued an order containing requirements applicable to microlights aircrafts. Ext. P4 is the copy of the said order dated 20-5-1993 dealing with the registration and airworthiness of microlight aircraft. Again the Director General of Civil Aviation issued an order on 14-7-1993 giving directions for operation of the hand gliders and powered hang gliders. After the issue of Exts. P4 and P5, the club could not conduct aero adventure sports programmes. Therefore, the Representative of the club had a detailed discussion with the first respondent in Oct. 1993. Later it made a representation dated 7-1-1994 evidence by Ext. P7 to the first respondent requesting to issue orders granting exemption in the case of the activities of the club. It again filed another
representation evidence by Ext. P8 dated 10-5-1995 before the Director General of Civil Aviation. It was in the aforesaid background the present writ petition has been filed by the club.
3. The main contention advanced by the club is that Clauses 6.4 and 8.4 contained in Exts. P4 and P5 respectively create unreason- * able restrictions in the matter of enjoyment of its fundamental right guaranteed under Article 19(1)(d) of the Constitution. Its further case is that the restrictions imposed by Exts. P4 and P5 are clearly discriminatory inasmuch as they allow the operation of microlight aircraft whereas they restrict the operation of gliders and powered hang gliders. ause 6.4 of Ext. P4 which relates to the operation- of microlight aircraft is as follows:
“The aircraft shall not be flown over the entire air space over the territory of Delhi, and areas falling within 50 km from international borders’ (The sea coast line will be considered as Indian International border in addition to geographical international border). The aircraft shall also not be flown over an assembly of persons or over congested areas or restricted areas including cantonment areas, defence installations etc. unless prior permission in writing is obtained from appropriate authorities. The restricted areas are listed in Annex. VII of this CAR in consultation with the Ministry of Home Affairs.”
Clause 8.4 in Ext. P5 which relates to the operation of hang gliders and powered hang gliders is as follows:
“The hang glider shall not be flown over the entire air space over the territory of Delhi and areas falling within 50 km from international borders. (The sea coast line will be considered as Indian International border in addition to geographical international border). The hang glider shall also not be flown over an assembly of persons or over congested areas or restricted areas including cantonment areas, defence installations etc. unless prior permission in writing is obtained from appropriate authorities. The restricted areas shall be notified by the DGCA from time to time in
consultation with the Ministry of Home
Affairs.”
above directions were issued by the first respondent in exercise of powers conferred on him under Rule 133A of the Aircraft Rules 1937. Those rules were framed in exercise of powers conferred by Sections 5 and 7 and Sub-section (2) of Section 8 of the Aircraft Act,. 1934, and Section 4 of the Indian Telegraph Act, 1885.
The Aircraft Act, 1934 is an act to make better provision for the control of the manufacture, possession, use operation, sale, import and export of aircraft. Sub-section (1) of Section 2 defines ‘aircraft’ as any machine which can derive support in the atmosphere from reactions of the air (other than reactions of the air against the earth’s surface) and includes balloons, whether fixed or free, airships, kites, gliders and flying machines. In view of this inclusive definition, respondents pointed out that both microlight aircraft and gliders would come within the meaning of the word ‘aircraft1. The effect of this submission is that both the provisions contained in the Aircraft Act, 1934 and the Aircraft Rules, 1937 would apply in the case of microlight aircraft and gliders, both hang gliders and powered hang gilder. This submission is approved.
It is essential now to find out whether a hang glider and powered hang glider would come within the category of ‘gliders’ contemplated in Section 2(1) of the Act. Clause 2 of Ext. P5 supplies data with regards to the use and operation ot hang-glider and powered hang-glider as thus:
“For the purpose of the CAR, a hang glider and powered hang glider is a vehicle that
is used or intended to be used for manual operation in the air by a single occupant. double occupant.
is used or intended to be used for recreation, sport, or any other purpose approved by DGCA in writing.
If unpowered weighs less than 150 kgs. (AUW) or
If powered:
(1) The maximum AUW should be less than 275 kgs. for a single sealer hang glider
(2) The maximum AUW should be less than 325 kgs. for a double seater hang glider.
(3) Is not capable of more than 70 knots calibrated air speed at full power in level flight, and
(4) Has a power off stall speed which does not expeed 10 knots calibrated air speed.”
Hang glider and powered hang glider are vehicles that are used or intended to be used for manual operation in the air by a single occupant or double occupant. It is also used or intended to be used for recreation, sport or any other approved purpose. If the vehicle is unpowered, its all up weight (AUW) would be less than 150 kgs. If powered the maximum all up weight would be less than 275 kgs. in the .case of single seater hang glider and in the case of a double seater hang glider it would be less than 325 kgs. Encyclopedia Americana describes ‘aircraft’ thus:
“Aircraft are any of the various types of craft capable of controlled flight. They include gliders, airplanes, helicopters and a veriety of advanced and experimental craft. (Airships and air cushion vehicles also may be considered aircraft) Gliders. Gliders are, basically unpowered airplanes. The propelling force for their flight is derived from their gliding downward toward the earth. Gliders were developed and flown before the first successful powered flight of an airplane by the Wright brothers in 1903. The Wrights gained valuable experience by first flying gliders.
Primary gliders are the simplest type of unpowered craft. They consist of a wring, a tail assembly, and a simple fuselage. They can attain only low speeds and are not instrumented. The pilot usually sits out in the open on a seat mounted on the forward keel of the fuselage and controls the glider with a stick and rudder. The craft is launched by being catapulted into the air or by being tewed by an automobile or airplane and then freed.”
Oxford Encyclopedic Dictionary describes ‘glider’ as an engineless aeroplane and adds further “The man-powered lauches of gilders in the 1890s have been superseded. Gilders now may be lauched by towing them behind, an aeroplane or catapulting them from the ground using an clastic rope.” Webster Comprehensive Dictionary, International Edition, supplies the meaning of ‘glider’ as this;
“An aircraft similar in general structure to an airplane but without an engine supported by rising currents of air.”
Thus the ‘gliders’ are basically unpowered and engineless airplanes. The propelling force for their flight is deprived from their gliding downward towards the earth. If glider is powered it is not capable of more than 70 knots calibrated air speed at full power in level flights and it has a power off stall speed which does not exceed 30 knots calibrated air speed. However, this trait will not take the powered glider out of the category of gliders’,
7. Section 5 of the Act authorises the Central Government to make rules regulating manufacture, possession, use, operation, sale import or export of any aircraft or class of aircraft. In pursuance of the above provision, Aircraft Rules 1937 have been framed. Rule 133A of the Aircraft Rules reads as follows:
“133A. Directions by Director General–The Director General may, through Notices to Airmen (NOTAMS), Aeronautical Information Publications, Aeronautical Information Circulars (AICs) Notices to Aircraft Owners and Maintenance Egnineers and publication entitled civil airworthiness 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.”
The above rule authorises the first respondent to issue orders, publications, information’s, circulars etc. regarding airworthiness requirements and to issue special directions relating to the operation, use etc. of aircrafts.
8. The next question to be examined is whether the impugned provisions create any restrictions on the fundamental right of the ‘ petitioner to move freely throughout the territory of India as guaranteed under Article 19(1)(d) of the Constitution. In other words, what the club requires is its aero adventure sports shall be allowed to be conducted without insisting for the observance of distance rule provided in Clause 6.4 of Ext. P4 and Clause 8.4 of Ext. P5. It is pointed out that those who are claiming this right has freedom to move freely within the limit of the territorial waters which is at the distance of twelve nautical miles (one nautical mite is equal to 1,852 metres) from the nearest point of the appropriate baseline. Of course the limit” of the territorial waters is provided in subsection (2) of Section 3 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976. Sub-section (1) of the said Section lays down that the sovereignty of India extends and has always extended to the territorial waters of India and to the seabed and subsoil underlying and the airspace over such waters.
9. However, by the impugned clauses, sea coast line has been treated as international border in addition to geographical international borders. Aircrafts shall not be flown over the entire air space over the territory of Delhi and areas falling within 50 kms. from international borders. Here sea coast has been treated as international borders for the purpose of implementing the instructions contained in Exts. P4 and P5 and not for any other purpose. There is no intention for the first respondent to upset the provisions relating to territorial limits of sovereignty of this country. In this context it must be recalled that in the countries like United Kingdom ‘gliders’ and ‘flying machine’ are not allowed to fly over the landing area of an aerodrome at a lower height than 6,000 feet in the case of a land aerodrome, or 2,000 feet in the case of a water aerodrome, except when departing therefrom or landing thereat. There are similar restrictions in the case of flying outside the landing area of an aerodrome. It may also be noted that acrobatic landings by such aircrafts are prohibited at aerodromes. Gliders and flyinlg machines are also prohibited in United Kingdom from
engaging in serial acrobatics in the vicinity of aerodromes at a distance of less than three miles from the nearest point of the aerodrome unless they arc flying at a greater height than 6,000 feet. So the different restrictions or regulations in the use and operation of gliders are not uncommon.
10. Microlight aircrafts or hang gliders shall not be flown over an assembly of persons or over congested areas or restricted areas including cantonment areas, defence installations etc. unless prior permission in writing is obtained from appropriate authorities. These provisions do not create any restrictions. There is no total prohibition of operation of microlight aircraft or hang gliders. The distinction between ‘regulation’ and ‘restriction’ must be clearly perceived. The ‘regulation’ is a process which aids main function within the legal precinct whereas ‘restriction’ is a process which prevents the function without legal sanction. Regulation is allowable but restriction is objectionable. What is contained in the impugned clauses is, only regulations and not restrictions, complete or partial. They are issued with authority conferred on the first respondent, under Rule 133A of the Aircraft Rules consistent with the provisions contained in the Aircraft Act 1934 relating to the operation, use etc. of aircrafts flying in India. Microlight aircrafts, hang gliders and powered hang gliders are all coming within the definition of ‘aircraft’ contained in Section 2( 1) of the Act. Section 5 of the Act authorises the Central Government to make rules regulating among other things use and operation of aircraft and lor securing the safety of aircraft operation. Rule 133A authorises the first respondent to issue directions relating to the operation and use of the aircraft. Thus the analysis of the above provisions would sufficiently indicate that the impugned clauses contained in Exts. P4 and P5 arc purely measures regulating the use and operation of aircrafts.
11. Let us now assume that the impugned clauses contained in Exts. P4 and P5 create restrictions in the enjoyment of right to move freely throughout the territory of India, can it
be said that the said right guaranteed under Article 19(1)(d) is an absolute rights? No it cannot be said so, because the said provision! is subject to the provisions contained in clause (5) of Article 19. Clause (5) does not prevent the State from making any law: imposing reasonable restrictions on the exercise of right under Article 19 (1)(d) in the interest of general public. What is required under this clause is that the restrictions imposed shall be reasonable and it shall be imposed in the interest of general public. In this context it would be appropriate to analyse the additional counter affidavit filed on behalf of the respondents. The counter affidavit has made it abundantly clear that the intention behind the imposition of the restriction is for preventing the entry of microlight and other light aircrafts in the country, because such aircrafts are not detected on the radars or their flying would not be normally noticed. It adds large portion of the borders of India is unguarded and therefore ‘porous and vulnerable’. In order to prevent the entry through the border area, it was found highly essential to have an effective check at the point of entry. It is also pointed out in the counter affidavit that the entry of such microlight and light aircrafts through unguarded areas is difficult to detect. Therefore, it cannot be argued that the restrictions even assuming it to be so, are unreasonable or arbitrary.
12. The reasons for imposing restrictions are stated in paragraph 6 of the counter affidavit thus:
“It is submitted that miscrolight power hang glider is only at best a flying motor cycle which can be take off from any plain open and limited space. The above said restriction was found to be essential in the interest of the security of the nation after much deliberation and discussion and it is a decision taken after consulting all concerned departments of Government of India such as Intelligence Wing, Director General of Civil Aviation, Home Ministry etc.”
It is further averred in paragraph 8 thus:
“It is submitted that Kerala is located in the southern west coast of India. It is in the
knowledge of the intelligence agencies that LTTE has a Air/Aviation Wing and therefore, possesses capability of flying such light aircrafts, it would therefore, be in the fitness of things if the entry of such light aircrafts are prevented.”
The above reasons disclosed by the respondents would sufficiently pin point that the impugned clauses were incorporated in Exts. P4 and P5 in order to safeguard the security of the country. Such a measure is always protected on the ground of public interest. Therefore, the impugned provisions are not in any way violative of the fundamental rights guaranteed under Article 19(1)(d) of the Constitution.
13. There is no discriminatory treatment in favour of using microlight aircraft as distinct from hang gliders and powered hang gliders. The effect of regulations or restrictions contained in the impugned clauses of Exts. P4 and P5 is common. The impugned clause contained in Ext. P4 is operative against the use and operation of microlight aircraft whereas the clause contained in Ext. P5 is operative against the use and operation of hang gliders and powered hang gliders. Microlight aircrafts and gliders would come within the definition of ‘aircraft’ as discussed herein before. The use and operation of these two categories of aircraft are regulated or restricted by the impugned clauses uniformly. Therefore, there .is no scope for the argument that microlight aircraft can be used without any restriction of regulation.
14. The counsel further highlighted before this Court the difficulties experienced by the petitioner-club in carrying out it aero sports activities and conducting its adventerous sports of land water and air. The present grievances of the club have been narrated in Ext. P8. Ext. P8 refers to the representation earlier filed before the first respondent. In the counter affidavit it is stated that the representations dated 10-9-1993 and 12-7-1994 received from the club were considered in consultation, with security agencies arid found it impossible to agree with the request made by the club. It is not known whether Ext. P8 representation has already been disposed of or not. If the said representation is still pending. I have no reason to think that the first respondent will not take a decision thereon according to law.
15. In view of the discussion herein above. I do not see any justifiable ground to quash the impugned clauses in Exts. P4 and P5. The challenge against these clauses is therefore repelled and the writ petition is accordingly dismissed. In the circumstances no order as to costs.