Facts of the Case

Several real estate developers constructed residential and commercial projects after obtaining development permissions from the competent municipal authorities and No Objection Certificates (NOCs) from the Airports Authority of India (AAI).

Subsequently, the Airports Authority alleged that the completed buildings exceeded the permissible top elevation prescribed under the NOCs due to revised measurements of ground elevation and issued communications directing stoppage of construction, rejection of revised NOCs, and initiation of demolition proceedings.

The petitioners contended that the actual height of the buildings from ground level strictly complied with sanctioned building plans and that the apparent excess arose because the recorded ground elevation had changed. They requested that an Aeronautical Study be conducted at their own cost to determine whether the buildings actually posed any danger to aircraft operations before any demolition action was taken.

However, the Airports Authority refused to conduct the Aeronautical Study, relying upon ADSAC Circulars which prohibited consideration of such requests where the permitted top elevation had already been exceeded.

The petitioners therefore approached the Gujarat High Court.

Issues Involved

  1. Whether the Airports Authority can refuse to conduct an Aeronautical Study solely because the structure allegedly exceeds the height permitted under the original NOC.
  2. Whether demolition can be insisted upon before determining whether the structure actually affects aircraft safety.
  3. Whether refusal to conduct an Aeronautical Study amounts to arbitrary and discriminatory action when similarly situated projects were granted revised height clearances.
  4. Whether ADSAC Circulars can override the statutory provisions contained in the Ministry of Civil Aviation (Height Restrictions for Safeguarding of Aircraft Operations) Rules, 2015.

Petitioners' Arguments

  • The buildings were constructed strictly in accordance with municipal approvals and sanctioned building plans.
  • There was no unauthorized construction beyond the approved structural height.
  • The alleged excess resulted only because the recorded ground elevation had subsequently changed.
  • Schedule II of the 2015 Rules specifically permits an Aeronautical Study to determine whether an existing structure actually affects aircraft operations.
  • Demolition cannot be directed without first determining whether the building constitutes an aviation hazard.
  • Numerous neighbouring projects facing similar issues were granted revised height clearances after consideration by the authorities.
  • The refusal to conduct an Aeronautical Study violated Articles 14 and 21 of the Constitution.
  • The petitioners were willing to bear the entire cost of the Aeronautical Study.

Respondents' Arguments

  • The petitioners had admittedly violated the height permitted under the original NOC.
  • ADSAC 05 and ADSAC 08 of 2020 prohibit consideration of Aeronautical Studies where the permitted top elevation has already been exceeded.
  • The site elevation declared while applying for the NOC was supplied by the petitioners themselves.
  • The Airports Authority cannot permit retrospective regularisation of unauthorized construction.
  • The petitioners must first remove the excess construction before seeking revision of the NOC or Aeronautical Study.
  • Aviation safety regulations must be strictly enforced and cannot be relaxed.

Court Order / Findings

The Gujarat High Court allowed all the petitions.

The Court held that:

  • Refusing to conduct an Aeronautical Study merely because the structure allegedly exceeds the permitted height is arbitrary and irrational.
  • Before directing demolition, the authority must first determine whether the existing structure actually affects aircraft safety.
  • The petitioners are entitled to an Aeronautical Study at their own cost.
  • The Airports Authority cannot deny such study solely by relying upon ADSAC Circulars where the statutory Rules do not impose such an absolute prohibition.
  • Administrative authorities are required to act fairly, reasonably and consistently, particularly when similarly situated projects have received revised height permissions.
  • The Court relied upon earlier Delhi High Court decisions including KGA Investments vs Union of India, Rajasthan Patrika Private Limited vs Union of India, DBS Reality vs Union of India, and Manav Infrastructure Pvt. Ltd. vs Union of India.
  • Notices directing demolition before conducting an Aeronautical Study were quashed.
  • The respondents were directed to conduct the Aeronautical Study at the petitioners' cost and thereafter pass fresh orders regarding the permissible height. If any violation remains after the study, the authorities may proceed in accordance with law.

Important Clarification

This judgment clarifies that:

  • An Aeronautical Study is an important statutory mechanism for determining whether a structure actually poses a risk to aircraft operations.
  • Authorities cannot mechanically insist on demolition before undertaking such study where the statutory framework permits assessment.
  • Executive Circulars cannot override or curtail rights available under statutory rules.
  • Administrative decisions must satisfy the principles of fairness, reasonableness, non-arbitrariness and natural justice.
  • Differential treatment between similarly situated builders without justification violates Article 14 of the Constitution.

Sections / Provisions Involved

  • Articles 14, 19(1)(g), 21, 226 & 227 of the Constitution of India
  • Aircraft Act, 1934
  • Aircraft (Demolition of Obstructions Caused by Buildings and Trees etc.) Rules, 1994
  • Ministry of Civil Aviation (Height Restrictions for Safeguarding of Aircraft Operations) Rules, 2015 (GSR 751(E))
  • Rule 4, Rule 6A and Rule 11
  • Schedule II of the 2015 Rules
  • Aerodrome Safeguarding Circular (ADSAC) 05 of 2020
  • Aerodrome Safeguarding Circular (ADSAC) 08 of 2020

Link to Download the Order-https://mytaxexpert.co.in/uploads/1784629650_1796compressed.pdf

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