Judgment : 1. Whether the amendment of Air Craft Rules 1937, by virtue of the introduction of Rule 3(54 A) with effect from 12.1.2009, makes it obligatory/mandatory for every Air Transport Undertaking to establish 'Tariff' which should include commission payable to the travel agents, is the question to be answered in this writ petition. 2. The practice of payment of commission showing it as part of 'Tariff' as provided under the Rules, was put an end to by many of the Air Transport Undertakings having principal place of business situated outside India, providing 'zero commission', with liberty to the travel agents to realize separate processing charges in the form of 'Transaction Fee' from the passengers; which is under challenge in W.P.(C).No.21908/2011. Subsequently, similar course was adopted by the domestic Air Transport Undertakings like Air India as well as Jet Airways. The direction given by the Director General of Civil Aviation (DGCA) vide Ext.P5 order dated 05.03.2010 in W.P. (C). No.21908/2011 in favour of the petitioners came to be watered down vide Ext.P11 order dated 28.07.2011 passed by another officer who assumed the office of the DGCA later. The petitioners seek to set aside Ext.P11 and to enforce/implement Ext.P5 (in W.P. (C).No.21908/2011) in these cases. In W.P.(C).No.17408/2012, the subsequent proceedings by way of Exts. P13 and P14 issued by the Air India Ltd. and Jet Airways India Ltd. are also under challenge. Parties and documents are referred to herein, as arrayed/given in W.P.(C).No.21908/2011, unless it is separately pointed out, or discernible from the circumstance. 3. The 1st petitioner in W.P.(C).No.21908/2011 (who is the sole petitioner in the other case) is a registered Association of the IATA accredited Travel Agents in India, having as many as 700 members, including the 2nd petitioner. The members of the 1st petitioner are engaged in the sale of air tickets and other incidental matters relating to air travel, both domestic and international. The Air Craft Rules 1937 (hereinafter called the 'Rules') formulated by the Central Government, invoking the power under Section 5 of the Air Craft Act, 1934 (hereinafter called the 'Act'), provide among other things, for fixation of 'Tariff' for carrying passengers and cargo. Though the term 'Tariff' used in the Rules means the amounts to be collected from the passengers or the cargo owners as the charge for the service rendered, there was no clear statutory definition for the same. Though the term 'Tariff' used in the Rules means the amounts to be collected from the passengers or the cargo owners as the charge for the service rendered, there was no clear statutory definition for the same. Rule 135(2A) stipulates that 'Tariff' has to be published and it shall show the complete break up figures as to the total amount, indicating the fare, tax, fee or such other charges, if any, separately. 4. Absence of clear definition to the term 'Tariff', but for some 'inclusive mention' at some places projected the obscurity with regard to the right of accredited travel agents to receive commission as part of the air fare, which led to various representations preferred before the Government by the Air Travel Agents' Association, including the petitioners. It is stated that, this led to amendment of the Air Craft Rules 1937, incorporating Rule 3(54 A) with effect from 9.1.2009, which defines the term 'Tariff', as it means any fare, rate or charge collected by the air transporting undertaking for the carriage of passengers, baggage or cargo including the commission payable to the agents and the conditions governing such fare, rate or charge. 5. According to the petitioners, by virtue of introduction of Rule 3(54 A), it became mandatory for every Air Transport Undertaking to establish 'Tariff', which should include the 'commission' payable to the travel agents. It is contended that the Airlines in India were paying commission at the rate of 9% to travel agents, which was subsequently reduced to 5% of the air fare. Later, some of the Airlines unilaterally decided to stop payment of commission and the travel agents were required to collect 'Transaction Fee' from the passengers, on their own. This led to serious disputes and problem in the travel industry as the passengers objected collection of any such amount, which was not part of the 'Tariff' to be separately shown on the ticket. This compelled the travel agents to represent the matter before the Government of India, which in turn led to amendment of the Air Craft Rules, particularly, incorporating Rule 3(54 A), defining the term 'Tariff', which was brought into force with effect from 12.01.2009. 6. This compelled the travel agents to represent the matter before the Government of India, which in turn led to amendment of the Air Craft Rules, particularly, incorporating Rule 3(54 A), defining the term 'Tariff', which was brought into force with effect from 12.01.2009. 6. Even after the introduction of Rule 3(54 A) as above, some of the Airlines refused to comply with the requirement to pay commission, which was taken to the notice of the DGCA by filing representation like Exts.P2 and P3. In view of the delay in considering the same, the petitioners approached this Court by filing W.P.(C).No.16509/2009, which was disposed of as per Ext.P4 judgment dated 17.9.2009 directing the 2nd respondent/DGCA to consider the matter and pass appropriate orders as specified. Pursuant to the said verdict, the 2nd respondent/DGCA conducted an enquiry and after hearing all the parties concerned, Ext.P5 order came to be passed on 5.3.2010, holding that, all the Airlines were legally bound to fix the 'Tariff' in accordance with Rule 135, r/w Rule 3(54 A) and the Airlines were given directions to comply with the same. 7. Ext.P5 order passed by the 2nd respondent/DGCA was however not given effect to by some of the foreign Airlines, which made the petitioner to approach the 2nd respondent, again referring to the non compliance. The 2nd respondent directed the concerned Airlines to comply with Ext.P5 by issuing notices like Ext.P6 series on different dates. Despite the service of notice, it was paid only scant regards, which was again brought to the notice of 2nd respondent by filing various representations like Ext.P7 series. Finding no positive result, the petitioners approached this Court again, by filing W.P.(C).No.16649/2010, seeking for a direction to be given to the 2nd respondent/DGCA to enforce his order. After hearing, the said writ petition was disposed of, as per Ext.P8 judgment dated 16.10.2010, directing the 2nd respondent/DGCA to take necessary action on the representations preferred by the petitioners. 8. According to the petitioners, the concerned officer who was holding the office of the 2nd respondent/DGCA got changed in the meanwhile and the officer who assumed the office subsequently was not taking proper care or interest to enforce Ext.P5. This made the petitioners to file COC No.44/2011 before this Court, wherein notice was ordered. 8. According to the petitioners, the concerned officer who was holding the office of the 2nd respondent/DGCA got changed in the meanwhile and the officer who assumed the office subsequently was not taking proper care or interest to enforce Ext.P5. This made the petitioners to file COC No.44/2011 before this Court, wherein notice was ordered. After getting extension of time, the then officer who was holding the office of the 2nd respondent/DGCA hurriedly passed Ext.P11 order dated 28.8.2011, rejecting Ext.P7 series of representations, which is impugned. As mentioned already, 'Air India' as well as 'Jet Airways' (Respondents 2 and 3 respectively in W.P.(C).No.17408/2012) also sought to adopt similar course, dispensing with the payment of commission and switching over to 'Transaction Fee' to be realized by the travel agents directly from the passengers vide Ext.P13 and P14. These proceedings, along with Ext.P11 order dated 13.7.2012 passed by DGCA are under challenge in W.P.(C).No.17408/2012, preferred by the Association, who happens to be the 1st petitioner in the other case. 9. The 1st and 2nd respondents have filed a statement seeking to explain the position and trying to sustain Ext.P11 order passed by the 2nd respondent/DGCA. The 4th respondent as well as the 12th respondent have filed separate counter affidavits rebutting the averments and allegations and pointed out that, there is absolutely no merit or bonafides in the writ petition. Similarly, in W.P.(C). No.17408/2012, a counter affidavit has been filed by the 1st respondent /DCGA, while the versions of 2nd and 3rd respondents have been brought on record by filing counter affidavit and statement respectively from their sides. 10. The crux of the contentions raised by the respondents is that, there is no duty to pay any commission to the travel agents and that, there is no violation of any statutory prescription in implementing the 'Transaction Fee', in place of 'commission', which was hitherto payable. Some of the respondents contend that, it is not a case of 0% commission, but that the commission was brought down to 1% and that alone. It is contended that, the statute does not contemplate payment of any minimum commission and that, the amendment brought about by way of Rule 3(54 A) with effect from 12.01.2009 defining the 'Tariff' only takes in the element of 'commission' as well, which does not make it obligatory for the Air Travel Operators to pay commission to travel agents. It is contended that, the statute does not contemplate payment of any minimum commission and that, the amendment brought about by way of Rule 3(54 A) with effect from 12.01.2009 defining the 'Tariff' only takes in the element of 'commission' as well, which does not make it obligatory for the Air Travel Operators to pay commission to travel agents. In what way, the business is to be conducted by the operators and what should be the terms and conditions between them and the travel agents, are to be governed by specific terms of contract and the DGCA cannot direct payment of any commission which is not contemplated under the relevant rules. It is also asserted that, payment of 'Transaction Fee' is the order of the day, as prevailing in many countries, which is more suited in the business perspective in India as well and that the petitioners are at liberty to charge appropriate fees for the service rendered by them in respect of the sale of tickets issued by the respondents, for carrying the passengers/cargo. 11. Mr. P. Ravindran, learned Senior Counsel addressed the Court on behalf of the petitioners; while, Mr. K. Jayakumar, learned Sr. Counsel led the arguments on behalf of the respondents, particularly the 3rd respondent in W.P.(C).No.17408/2012, supported by the arguments advanced by the other learned counsel including Mr.Madhu Radhakrishnan and Mr.Reji George appearing for the concerned respondents in W.P. (C)No.21908/2011. The version of Government of India/DGCA was put forth by Mr.Sanjay, the learned Central Government Counsel. 12. The crucial question to be considered is, whether there is a statutory obligation on the part of the respondents Air Transport Operators to pay commission to their Agents, who sell tickets to the passengers or for taking cargo in the aircrafts. Does it form part of the 'Tariff ' as contemplated under Rule 3 (54A) of The Aircraft Rules 1937 and does it require to be shown separately as envisaged under Rule 135(2A) of the said Rule? Another question to be considered is, whether the direction given by the second respondent/DGCA vide Ext.P5 is within his power and competence as contemplated under the relevant provisions of the Act/Rules, to have it sustained and whether it could be directed to be enforced merely for the reason that the said order has not been challenged by the parties concerned. 13. 13. From the sequence of events, the main dispute raised by the petitioners-Travel Agents is that, there is no rhyme or reason in putting an end to the payment of 'commission', to be substituted by 'transaction fee'; to be collected by the agents themselves from the passengers/customers. Since the issue relating to 'Tariff' was in a fluid state of affairs, an amendment was brought about by the Central Government, whereby Rule 3 (54A) was introduced in the Aircraft Rules, 1937 with effect from 12/01/2009 defining the term "Tariff", which includes "commission" as well. By virtue of the obligation under Rule 135(2A), it has to be published in the web site/newspaper and such other places and also on the ticket giving the split-up figures and as such, 'commission' cannot be substituted or done away with, is the contention raised by the petitioners. 14. Coming to the relevant provisions of law, Section 5 of The Aircraft Act, 1934 refers to the rule making power of the Central Government, to formulate Rules regulating the manufacture, possession, use, operation, sale, import or export of any aircraft or class of aircraft and for securing the safety of aircraft operations as dealt with in Sub-Section (1) and also on such other matters as given under Sub-Section (2). Section 5A deals with the power vested upon the DGCA or such other specifically empowered officers to issue directions, to give effect to the provisions of the Act and the Rules with reference to the specified matters. By virtue of Sub-Section (2) of Section 5A, the orders and directions issued under Sub-Section (1) of Section 5A shall be complied with by the person or persons, to whom such direction is issued. 15. It was invoking the power under Section 5, that the Government formulated the Aircraft Rules, 1937. Rule 3(54A) bought into force with effect from 12.01.2009 defines the term “Tariff" in the following terms: R.3(54A): "Tariff" means any fare, rate or charge collected by an air transport undertaking for the carriage of passengers, baggage or cargo, including the commission payable to the agents, and the conditions governing such fair, rate or charge. Rule 3(54A) bought into force with effect from 12.01.2009 defines the term “Tariff" in the following terms: R.3(54A): "Tariff" means any fare, rate or charge collected by an air transport undertaking for the carriage of passengers, baggage or cargo, including the commission payable to the agents, and the conditions governing such fair, rate or charge. Explanation-For the purposes of this clause, 'cargo' does not include mail." The duty to prescribe "Tariff" by the air transport undertaking and to have it published, giving the split-up figures and the power of the DGCA to pass appropriate orders/ issue directions to the air transport undertakings, so as to give effect to the provisions, are dealt with under the various Sub Rules of Rule 135 of the said Rules; which reads as follows: R.135. Tariff (1) Every air transport undertaking operating in accordance with sub-rules (1) and (2) of rule 134, shall establish tariff having regard to all relevant factors, including the cost of operation, characteristics of service, reasonable profit and the generally prevailing tariff. (2) Every air transport undertaking shall cause to be published the tariff established by him under sub-rule (1) in his website or two daily newspapers, and shall display such tariff in a conspicuous part of his office and in the office of his agent, if any. (2A) The tariff to be published under sub-rule(2) or advertised in any other way shall show the following particulars, namely:- (a) the total amount payable by a passenger; and (b) a complete break-up of the total amount, indicating the fare, tax, fees or any other charge, if any, separately. Explanation -For the purposes of this sub-rule - (a) tax means the amount payable to the Government; and (b) fees means the amount payable to the service providers for provision of any service or facility to the passengers. (2B) The particulars mentioned in sub-rule (2A) shall also be mentioned in the passenger ticket. (3) Every air transport undertaking shall maintain all records relating to tariff established by him under sub-rule (1) in such manner and in such form as may be specified by the Director -General, an d on demand by the Director-General shall produce such records before the Director-General for inspection. (3) Every air transport undertaking shall maintain all records relating to tariff established by him under sub-rule (1) in such manner and in such form as may be specified by the Director -General, an d on demand by the Director-General shall produce such records before the Director-General for inspection. (4) Where the Director-General is satisfied that any air transport undertaking has established excessive or predatory tariff under sub-rule (1) or has indulged in oligopolistic practice, he may, by order, issue directions to such air transport undertaking. (5) Every direction issued under sub-rule (4) shall be complied with by such air transport undertaking." 16. True, the law makers have defined the term "Tariff" under Rule 3(54A) of the Rules, which of course includes 'commission' payable to the agents. There is also a duty upon the air transport undertakings to publish the 'Tariff' ( which includes 'commission' as well) giving the break-up figures, by virtue of the mandate under Rules 135(1), 135(2), 135(2A) and 135(2B). But this Court finds it difficult to accept the proposition mooted by the petitioners that the statute casts an obligation upon the air transport operators to pay commission to the agents and to have it included as part of 'Tariff', though the Tariff includes the commission payable as well. Since the Rules recognise payment of commission to the travel agents, on such an event, it has necessarily to be included as part of 'Tariff', by virtue of the inclusive definition. Neither the 'Act' nor the 'Rules' does/do say anything in the positive, making it obligatory for the air transport undertakings to pay commission to the travel agents or to enable the latter to claim commission as a matter of right. 17. What should be the consideration for maintaining the relationship between the Principal and the Agent, has necessarily to be evolved between the parties, based on the specific terms to be agreed upon and to be incorporated in the relevant agreement. The 'consideration' need not always be by way of 'commission' and it can be on some other terms as well. It is for nobody else to say that, it shall be only by way of commission. The 'consideration' need not always be by way of 'commission' and it can be on some other terms as well. It is for nobody else to say that, it shall be only by way of commission. If it is by way of commission, by virtue of the definition of the term "Tariff" under Rule 3 (54A), read with Rule 135(2A), it becomes part of the 'Tariff' and becomes mandatory for the air-transport operators to have it displayed, giving the figures separately in the publication/web site and also on the ticket. It is also relevant to note that, there is no provision either under the 'Act' or the 'Rules' stipulating payment of commission at a particular rate. The second respondent/DGCA is also well aware of the statutory provision that no such rate is either prescribed under the Act or the Rules as taken note of in Ext.P5. But the finding of the second respondent/DGCA in Ext.P5 is that, though no rate of commission is prescribed, in view of the amendment to the Rules, commission being part of the Tariff, the air transport operators cannot fully dispense with payment of commission, substituting the same by 'transaction fee'. It was in the said circumstance, that Ext.P5 order came to be passed, directing the air transport operators to comply with the statutory requirements, followed by Ext.P6 alert notices. 18. Coming to the nature and scope of the dispute, as discernible from Ext.P5 (which is sought to be implemented), the petitioners were all along contending that except the Domestic airlines, all the 'named 14 foreign airlines' had decided to implement 'zero percentage' commission, substituting the same by way of 'transaction fee' to be realised by the travel agents themselves, which was sought to be intercepted. Pursuant to Ext.P4 judgment passed by this Court (which was at the 'admission stage' and without issuing notice to the airlines, though included in the party array), the second respondent/DGCA, after hearing all the parties concerned passed Ext.P5, wherein it has been observed in paragraph 8 that, the designated airlines are not required to file 'Tariffs' with the aeronautical authorities or obtain their approval for the same. In other words, the quantum of 'Tariff' is not to be looked into by the DGCA. It has also been observed that, the same logic applies to 'commission' as well and the quantum of commission is not the concern of the DGCA. In other words, the quantum of 'Tariff' is not to be looked into by the DGCA. It has also been observed that, the same logic applies to 'commission' as well and the quantum of commission is not the concern of the DGCA. However, observing that the existing Rule 135 of Aircraft Rules, 1937 does not prescribe 'transaction fee' as part of the 'Tariff' to be determined by the airlines, the second respondent/DGCA held that 'commission' cannot be replaced by 'transaction fee'. It was accordingly, that direction was given to the 'named 14 airlines' to ensure compliance of the existing statutory provisions regarding determination of 'Tariff' as per Rule 135(1) and display the fare and the components as per Rule 135(2), (2A) and (2B) of the above Rules. 19. When complaints were filed before the second respondent/DGCA by the petitioners, referring to non-compliance with the direction contained in Ext.P5, it was directed to be considered as per Ext.P8 judgment. The 'opening sentence' in paragraph 2 of Ext.P8 judgment itself reveals the exact grievance of the petitioner that the direction given by the second respondent/DGCA to the airlines to comply with the requirements of Rule 135(2) of The Aircraft Rules was still to be implemented. It was pursuant to the said direction vide Ext.P8 judgment, that the matter was examined by the second respondent/DGCA (the successor in office) who passed Ext.P11 virtually to the effect that there was no violation of any statutory provision. It has been observed in Ext.P11, that payment of commission is a commercial arrangement between the Airlines and Travel Agency and that the DGCA has no role to play. The case of the petitioners is that, Ext.P5 order has not been challenged by anybody and it has become final. As such, the second respondent could not have rewritten or reviewed Ext.P5 order, by way of Ext.P11 and hence the same is liable to be set aside and a writ of mandamus is to be issued to the second respondent/DGCA to implement Ext.P5, by taking penal action under Section 11 of The Aircraft Act, 1934. 20. As such, the second respondent could not have rewritten or reviewed Ext.P5 order, by way of Ext.P11 and hence the same is liable to be set aside and a writ of mandamus is to be issued to the second respondent/DGCA to implement Ext.P5, by taking penal action under Section 11 of The Aircraft Act, 1934. 20. As mentioned hereinbefore, the only direction given in Ext.P5 (but for the observation that commission cannot be substituted by transaction fee), was to the 'named 14 airlines', to ensure compliance of the existing statutory provisions regarding determination of 'Tariff' as per Rule 135(1) and display of the fare and the components as per Rule 135(2), (2A) and (2B) of the Aircraft Rules, 1937. Whether there is any violation of statutory provision is the relevant question. If the statutory provision does not make it obligatory to the air-transport operators to pay commission to the agents, can the observation of the second respondent/DGCA in Ext.P5, that 'commission' cannot be replaced by 'transaction fee' be sustained or in other words, if the DGCA has understood the mandate of the legal provisions in a different/wrong manner, can it be the basis for issuing a writ of mandamus by this Court, merely for the reason that Ext.P5 order has not been challenged by anybody is the exact question. 21. Obviously, there is no doubt for the second respondent/DGCA, while passing Ext.P5 order, that the Rules do not prescribe any rate of commission and there is reason for the said respondent to fix the 'quantum', by virtue of the inclusion of the term "Commission" as part of the 'Tariff' as given under Rule 3 (54A) of the Rules. If any 'Commission' is collected, it becomes part of the 'Tariff', when, it becomes obligatory for the Air Transport Operators to publish it as specified, including on the ticket, giving the split-up figures as provided under Rule 135(2A) of the Rules. If no commission is collected and the consideration for retaining the Agency is something else, other than by commission, it is quite corollary that there is no need, necessity or occasion for the Air Transport Operators to have it included as part of the 'Tariff', to be mentioned separately. If no commission is collected and the consideration for retaining the Agency is something else, other than by commission, it is quite corollary that there is no need, necessity or occasion for the Air Transport Operators to have it included as part of the 'Tariff', to be mentioned separately. This is more so, for the obvious reason that Rule 135 of the Rules (as extracted herein before) does not mention the term 'commission' anywhere under the said Rule; inspite of the fact that Sub Rule (2A) was introduced under Rule 135, by virtue of the amendment with effect from 1.04.2009 i.e. subsequent to the amendment introduced by way of Rule 3(54A) with effect from 12.01.2009 defining the term 'Tariff'. In short, the legal position is that, if 'Commission' is paid or collected, it becomes part of 'Tariff' and it has to be shown separately and the Rule does not make it obligatory for the Air Transport Operators to pay any commission to the Travel Agents, by virtue of the amendment of the term 'Tariff' introduced with effect from 12.01.2009, by virtue of Rule 3 (54A)of the said Rules. 22. With regard to the enforceability of the observations relating to 'commission' as contained in Ext.P5, it is true that Ext.P5 has become final, as nobody has challenged it. But then, a Writ of Mandamus can be issued only if the violation of any provisions of the Act/Rules or the directions given by the DGCA (which is legally sustainable) is established. The alleged violation of the Rule as contended by the petitioners is with reference to non-payment of 'commission', as replaced by 'transaction fee' to be collected by the agents themselves. Since this Court has already found that, neither the Act nor the Rules has/have prescribed payment of 'Commission' as mandatory, to be part of the 'Tariff', there cannot be any interference, in so far as no such violation is established. The grievance projected by the petitioners in the earlier round of litigation by filing W.P.(C)No.16644/2010 leading to Ext.P8 judgment was also with reference to the violation of the Rules under Rule 135(2), as discernible from the opening sentence of paragraph 2 of the said verdict, which issue was directed to be considered and dealt with, leading to Ext.P11 order. The grievance projected by the petitioners in the earlier round of litigation by filing W.P.(C)No.16644/2010 leading to Ext.P8 judgment was also with reference to the violation of the Rules under Rule 135(2), as discernible from the opening sentence of paragraph 2 of the said verdict, which issue was directed to be considered and dealt with, leading to Ext.P11 order. The only question is whether the second respondent could have directed payment of 'commission' on his own or whether his observation that the 'Commission' cannot be replaced by 'Transaction Fee' is correct or sustainable, to be of binding effect upon the Airlines as contemplated under Sub Section 2 of Section 5A of the 'Act' or by virtue of Sub Rule 4 of Rule 135 of the 'Rules'. 23. The power of the DGCA to pass orders/directions arises from Section 5A of the Act, which reads as follows: "S.5A. Power to issue directions -(1) The Director General of Civil Aviation or any other officer specially empowered in this behalf by the Central government may, from time to time, by order, issue directions, consistent with the provisions of this Act and the rules made there under, with respect to any of the matters specified in clauses (aa), (b), ( c) , (e), (f), (g), (ga), (gb), (gc), (h), (i), (m) and (qq) of sub-section (2) of section 5, to any person or persons using any aerodrome or engaged in the aircraft operations, air traffic control, maintenance and operation of aerodrome, communication, navigation, surveillance and air traffic management facilities and safeguarding civil aviation against acts of unlawful interference, in any case where the Director-General of Civil Aviation or such other officer is satisfied that in the interests of the security of India or for securing the safety of aircraft operations it is necessary so to do. (2) Every direction issued under sub-section (1) shall be complied with by the person or persons to whom such direction is issued." In contrast to the Rule-making power of the Government under Section 5(2), the power vested with the DGCA under Section 5A consciously omits the subject matter included by way of Clause (ab) of Section 5(2) of the 'Act'. (2) Every direction issued under sub-section (1) shall be complied with by the person or persons to whom such direction is issued." In contrast to the Rule-making power of the Government under Section 5(2), the power vested with the DGCA under Section 5A consciously omits the subject matter included by way of Clause (ab) of Section 5(2) of the 'Act'. Section 5(2)(ab) reads as follows : Sec.5(2)(ab): the economic regulation of civil aviation and air transport services, including the approval, disapproval or revision on tariff of operators of air transport services other than the tariff referred to in clause (a) of sub-section (1) of section 13 of the Airports Economic Regulatory Authority of India Act, 2008; the officers or authorities who may exercise powers in this behalf; the procedure to be followed, and the factors to be taken into account by such officers or authorities; appeals to the Central Government against orders of such officers or authorities and all other matters connected with such tariff. Explanation -For the purposes of this clause, "tariff" includes fares, rates, valuation charges and other charges for air transport of passengers, or goods, the rules, regulations, practices or services affecting such fares, rates, valuation charges and other charges and rates, terms and conditions of commission payable to passenger or cargo sales agents;" The explanation given to the above provision refers to the term 'Tariff' as inclusive of the various items including the 'Commission' payable to the agents. This subject matter under Sub Section 2(ab) is specifically ear-marked within the Rule making authority of the Central Government under Section 5 and the DGCA has not been given any power, to issue any order or directions in so far as the said subject matter is concerned. Unless the order/direction is upon the specific subject matters, such as clauses (aa), (b), ( c) , (e), (f), (g), (ga), (gb), (gc), (h), (i), (m) and (qq) of Sub-Section 2 of Section 5 as referred to under Sub-Section 1 of Section 5A of the 'Act', it cannot have any binding effect on the persons to whom such direction is issued, as contemplated under Sub Section 2 of Section 5A. This being the position, there cannot be any writ of mandamus to the second respondent to implement the so called order/direction with regard to the payment of 'Commission' as contained in Ext.P5. 24. This being the position, there cannot be any writ of mandamus to the second respondent to implement the so called order/direction with regard to the payment of 'Commission' as contained in Ext.P5. 24. Coming to the question whether the observation and direction given by the second respondent/DGCA in Ext.P5 with regard to the payment of 'Commission' to the Agents can be sustained with reference to the power of the DGCA under Sub Rule 4 of Rule 135 of the 'Rules', it is to be noted that the said power can be invoked only if the DGCA is satisfied that any air transport undertaking has established excessive or predatory tariff under sub-rule (1) or has indulged in oligopolistic practice. There is no case that the concerned respondents have established any excessive or predatory tariff, as the dispute is only with regard to non-payment of commission. Almost same is the position with regard to the case when it comes to any oligopolistic practice. The term "oligopoly" is a market form in which, the market or industry is dominated by a few number of large sellers (oligopolists), as given in the Black's Law Dictionary -English Edn. Since there are only few sellers, each oligopolist may be aware of the actions of the others and the decision of one may influence the other '(Wikipedia)'. Payment of 'Commission' by the Principal to the Agent cannot be declared as an oligopolistic practice, which on the other hand depends upon the terms and conditions agreed in between, to act as an Agent of the Principal. It is always open for the Agent to refuse to act as an Agent, if the conditions of Agency are not acceptable. For the same reason, the Principal can stipulate the consideration, also in form other than Commission, and if it is acceptable to the Agent, he can continue to be the Agent on such terms. This depends upon the terms of the agreement giving rise to the concluded contract, terms of which are not liable to be probed into, invoking the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. This Court also finds support in this regard, in view of the dismissal of similar claim raised by the concerned petitioners before the Karnataka High Court, as per judgment dated 31/05/2012 in W.P.(C)No.17600/2011 and connected cases. 25. This Court also finds support in this regard, in view of the dismissal of similar claim raised by the concerned petitioners before the Karnataka High Court, as per judgment dated 31/05/2012 in W.P.(C)No.17600/2011 and connected cases. 25. It is incidentally relevant to note that the above judgment rendered by the Karnataka High Court makes a reference to the interference declined by this Court as well, in some matters in the earlier round of litigation. It is brought to the notice of this Court that, when the rate of commission was reduced earlier, W.P.(C)No.20236/2008 was preferred by the very same petitioner Association. As per Ext.P7 mentioned therein, the first petitioner Association was informed that, consequent upon the changes being witnessed globally, the Airlines in India were struggling hard to survive with bottom lines of almost all carriers being in red, under which circumstance, invoking the powers made available under the relevant Passenger Agency Conference Resolutions, the existing standard agency commission was being reduced from 5% to 0% on all Domestic and International tickets and that the travel agents in the said circumstance would be at liberty to charge a 'transaction fee' from the clients directly. The challenge raised against Ext.P7 was repelled and the writ petition was dismissed, as per judgment dated 28.10.2008. True, it was a verdict rendered prior to the amendment of Rule 3(54A) with effect from 12.01.2009 and introduction of Sub-Rule (2A) under Rule 135 of the 'Rules' with effect from 16.04.2009; making it obligatory to give the split-up figures. But in view of the finding rendered by this Court already, that the amendment has not made any change, so as to mulct a liability upon the Air Transport Undertaking to pay 'Commission' as a mandatory requirement, this Court finds that the grievance projected by the petitioners is not liable to be entertained any more. 26. Yet another aspect to be considered is that, the nature of service rendered by the travel agents in the Airline industry has undergone a major change after the introduction of 'web ticketing'. Almost all the Airlines operating today are having online ticket booking systems and the role of the travel agents has been changed mostly as travel advisers or to perform such other tasks, which is stated as being compensated by the Airlines to an appropriate extent, subject to the terms agreed in between. Almost all the Airlines operating today are having online ticket booking systems and the role of the travel agents has been changed mostly as travel advisers or to perform such other tasks, which is stated as being compensated by the Airlines to an appropriate extent, subject to the terms agreed in between. It is all the more open to the customers to go for online booking without the intervention of the travel agents and it is open for the Air Transport Operators to issue tickets accordingly, subject to satisfaction of the requirements under the relevant rules. It is also open for the travel agents to appropriate the prescribed charges towards 'Transaction Fee', as agreed between the Principal and the Agent, for facilitating the service and there is no basis for any apprehension that the customers will not effect the said payment; more so when the 'Tariff' and such other charges permitted to be collected are to be displayed in the web site of the Air Transport Operators and also in the office of the travel agents. In any view of the matter, the petitioners cannot claim payment of 'Commission' as a matter of right, in so far as no provision of law does require any such instance, nor does it prescribe any minimum or maximum rate. For the same reason, the challenge raised by the petitioner against Exts.P13 and P14 in W.P.(C)No.17408/2012 also fails and it is held accordingly. 27. Incidentally, it is to be noted that the first petitioner herein had approached this Court by filing W.P.(C)No.25475/2011 stating that the petitioner Association was having nearly 30% membership of travel agents and hence was entitled to have an entry by way of membership to the first respondent body therein -'IATA' (third respondent herein), which is a body corporate having its registered office and head quarters in Canada. Admittedly, almost all the Airlines operating in different countries in the world are members of the said body, the administration of which and the relationship among the members are regulated by resolutions passed by the Executive body of the IATA, which however do not have any statutory force. As part of the resolutions among various provisions, the Passenger Sales Agency Rules contain provisions for the constitution of 'Agency Programmer Joint Council' (APJC). Among the members of the APJC, one section represents accredited travel agents. As part of the resolutions among various provisions, the Passenger Sales Agency Rules contain provisions for the constitution of 'Agency Programmer Joint Council' (APJC). Among the members of the APJC, one section represents accredited travel agents. As on date, only M/s. Travel Agents Association of India and Travel Agents Federation of India were inducted to the APJC representing the accredited travel agents. Contending that the petitioner Association was having 30% membership of travel agents, representations were filed before the IATA and thereafter, the first petitioner Association sought for intervention of this Court to direct the IATA to take steps to reconstitute the APJC ensuring the representation of the petitioner Association. The prayer of the petitioner Association to direct the second respondent DGCA to give directions to the IATA was declined by this Court, observing that there was no enabling provision under the Aircraft Act, 1934 or the Aircraft Rules, 1937 so as to compel the second respondent/ DGCA to direct the IATA to reconstitute APJC, which is an internal mechanism. It was accordingly, that the writ petition was dismissed, which was the subject matter of challenge in W.A.No.1641/2011. A Division Bench of this Court, as per Ext.P12 in W.P.(C) No.17408/2012, held that there was no justification for interfering with the judgment passed by the learned Single Judge and that the second respondent ( DGCA) had no justification to regulate the relationship between the accredited travel agents and Air companies appointing them. It was also made clear in paragraph 3 of the said verdict, that the DGCA was the authority to interfere in cases where the airlines charged excessive tariff and that there was no such case. While giving direction to the second respondent/DGCA to consider the application, if any preferred with specific reference to such instance, it was also made clear by the Division Bench that any intervention by the second respondent/DGCA should be authorized by the provisions of the Act and Rules and should not amount to unnecessary interference with Airline operations by private carriers. While giving direction to the second respondent/DGCA to consider the application, if any preferred with specific reference to such instance, it was also made clear by the Division Bench that any intervention by the second respondent/DGCA should be authorized by the provisions of the Act and Rules and should not amount to unnecessary interference with Airline operations by private carriers. This Court finds that there is no infringement of any statutory prescription and as it stands so, the direction given by the second respondent/DGCA vide Ext.P5, with reference to replacement/substitution of 'Commission', for which he does not have any power, jurisdiction or competence, (the subject matter under Section 5(2)(ab) of the Aircraft Act, 1934 having been consciously omitted from the purview of Section 5A), is not liable to be entertained or enforced. Similarly, Ext.P11 order passed by the second respondent/DGCA, pursuant to Ext.P8 judgment is perfectly in order and the same is not liable to be assailed under any circumstance. There is absolutely no merit or bonafides in the writ petitions. Interference is declined and they are dismissed accordingly.