Kerala High Court
B.Reghuram Shetty vs The Chairman on 22 September, 2020
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 22ND DAY OF SEPTEMBER 2020 / 31ST BHADRA, 1942
WP(C).No.1104 OF 2019(K)
PETITIONER:
B.REGHURAM SHETTY,S/O.LATE SHAMBU SHETTY,
CHAIRMAN CUM MANAGING DIRECTOR,
M/S.GODS' OWN COUNTRY HEALTH RESORTS
INTERNATIONAL (PVT.) LTD., SREESYLAM,
DBRA-63-C, KOWDIAR P.O., TRIVANDRUM,
REPRESENTED BY HIS POWER OF ATTORNEY
S.L. UNNIKRISHNAN,S/O.LATE B.S.SIVARAJAN,
SAUPARNIKA,RC JUNCTION,KUNNUKUZHY,TRIVANDRUM.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.THOMAS P.KURUVILLA
RESPONDENTS:
1 THE CHAIRMAN,APPELLATE COMMITTEE,
AIRPORTS AUTHORITY OF INDIA,
RAJEEV GANDHI BHAVAN,SAFDARJUNG AIRPORT,
NEW DELHI - 110 003.
2 THE AIR PORTS AUTHORITY OF INDIA,
REGIONAL HEAD QUARTERS,SOUTHERN REGION,
OPERATIONAL OFFICERS COMPLEX,
CHENNAI - 600 027.
3 UNION OF INDIA,REPRESENTED BY ITS SECRETARY,
CIVIL AVIATION, NEW DELHI.
ADV.P.VIJAYA KUMAR (SC GC)
R2 BY ADV. SRI.LAKSHMEESH.S.KAMATH
R2 BY ADV. SRI.V.SANTHARAM
R3 BY SRI.TULASI PANICKER, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-08-
2020, THE COURT ON 22-09-2020 DELIVERED THE FOLLOWING:
WP(C)No.1104/2019
2
JUDGMENT
Dated this the 22nd day of September, 2020 The petitioner who is Chairman and Managing Director of a company seeks to quash Exts.P17 and P19 and to compel the first respondent to conduct Aeronautical Study as directed in Ext.P12 judgment.
2. The petitioner states that his company owns 36.70 Ares of land in Attipra Village, Thiruvananthapuram Taluk. The petitioner proposed to construct a Hotel Project having a plinth area of 10706.67 m² and submitted an application for building permit in 2006. Since the site was located within the vicinity of Thiruvananthapuram International Airport, height restrictions as provided in Table 3 of Rule 32 (2) of the Kerala Municipality Building Rules, 1999 (KMBR) was applicable. As per the said Table, the height restriction is 61 meters Above Mean Sea Level (AMSL). The site had an elevation of 7.307 meters and WP(C)No.1104/2019 3 hence the petitioner can construct upto a height of 53.693 meters Above Ground Level (AGL). The height of the proposed building as per the plan was 39.5 meters AGL. Therefore NOC from the third respondent was not required. As per Ext.P2, the Corporation of Thiruvananthapuram issued building permit on 20.7.2006.
3. Before commencement of the construction, the company decided to increase the plinth area to 12871.16m², with a view to satisfy the stipulation of Department of Tourism, for five star classification. Even as per the revised proposal, the total height was 52.83 m which was less than the maximum permissible height of 61m AMSL. The revised plan was approved by the 1st respondent-Chairman, Appellate Committee, Airport Authority of India as per proceedings No.ZAE/ZA2/2/990/08 dated 27.1.2008. The piling work started in 2009. Validity of Ext. P2 permit expired on 19.7.2009. The Corporation of Trivandrum renewed Ext.P2 building permit on 27.01.2010 as per Ext. WP(C)No.1104/2019 4 P3, which was valid up to 28.1.2013.
4. During the construction, the height of each floor had to be increased to 20 to 30 cm and consequently the height of the building was increased to 55.70 m AMSL. Still the said height was within the permissible limit of 61 m. The construction proceeded strictly in accordance with the KMBR. Ext. P3 building permit expired on 28.1.2013. The Corporation of Thiruvananthapuram renewed the permit up to 27.01.2016, as per Ext. P4.
5. In the meanwhile the KMBR was amended on 05.02.2013 by deleting the proviso to Rule 32 (2) and the amendment provided that for buildings in the vicinity of airports, the height shall be further limited subject to any notifications issued by the Government of India under the Aircraft Act, 1934. While the work was in progress, the Corporation of Trivandrum required the petitioner to produce NOC from the second respondent - Airport Authority of India.
WP(C)No.1104/20195
6. The petitioner made an application. The second respondent issued Ext.P7 NOC dated 11.3.2015. In the NOC the permissible top elevation of the building was shown as 49.26 meters AMSL. The petitioner states that as per the KMBR, the permissible height is 61 m AMSL and the constructed building had a height of 55.70 m which is within the permissible limit. The superstructure of the building was already constructed in December, 2012 itself. Therefore the second respondent ought not have restricted the height to 49.26 meters AMSL.
7. The Corporation of Trivandrum thereupon issued a notice directing to show cause why the building to a height of 10.09 m shall not be demolished. The petitioner filed WP(C) No.13572 of 2015. This court quashed the impugned order as per Ext P12 judgment and directed the first respondent Appellate Authority to consider the matter afresh. In Ext.P12, this court directed that if the petitioner requests for Aeronautical Study for ascertaining the height WP(C)No.1104/2019 6 restriction, it should be considered.
8. Pursuant to Ext.P12 judgment, the petitioner submitted Ext.P13 request to the Appellate Committee for Height Clearance, AAI seeking to conduct Aeronautical Study to satisfy that the petitioner is entitled to height clearance. The petitioner also pointed out that NOC has been granted to others, where top elevation of buildings were up to 76.27 m and 91 m. Those buildings are within a radius of 500 m from the property of the petitioner.
9. The first respondent appointed a Sub-committee to verify the submissions made by the petitioner. The Sub- committee conducted inspection and gave a report. A copy of the report was not made available to the petitioner, in spite of request. The case was heard on 17.10.2018 and the first respondent passed Ext.P17 order on 8.11.2018 rejecting the appeal.
10. The rejection was solely based on the report of the Sub-committee. The petitioner again submitted Ext.P18 WP(C)No.1104/2019 7 requesting to conduct Aeronautical Study instead of resting upon the report of the Sub-committee. The request was rejected as per Ext.P19. Ext.P17 and P19 are illegal and unsustainable, contended the petitioner.
11. The respondents 1 and 2 filed counter affidavit. The respondents contended that the Rule 32 (2) of KMBR was not in conformity with the notifications issued by the Government of India under Section 9A of the Aircraft Act, 1934, when the building permit was initially issued to the petitioner. The KMBR was appropriately amended in tune with the Government of India Rules only on 05.02.2013. The respondents 1 and 2 are not answerable for inserting an inconsistent rule in the KMBR. Even after the Amendment, the local authority renewed the permit.
12. The competent authority to issue NOC for height clearance within 20 kms radius of Trivandrum Airport is the General Manager (Aero-SR), AAI, Chennai. During the period,the Ministry of Civil Aviation, Govt of India Gazette WP(C)No.1104/2019 8 Notification SO No.988 dated 5.1.1988 was in force. The petitioner was aware that NOC from Civil Aviation authorities are required. Still the petitioner did not care to obtain the same. The petitioner has sought Aeronautical Study only after construction of the building. Aeronautical Study is not permissible once the construction is made beyond permissible limit.
13. Senior Advocate Sri. S. Sreekumar assisted by the counsel for the petitioner, argued that the upper height limit of 61 meters AMSL provided in the KMBR was also as per the Aircraft Act,1934. When the petitioner made an application for building permit, the limit was 61 meters and accordingly building permit was issued. Even with the changes in the building plan, made in order to satisfy the Ministry of Tourism criteria for Five Star classification, the 61 meter limit was not exceeded and hence the Trivandrum Corporation renewed the building permit.
14. The petitioner has been required to demolish WP(C)No.1104/2019 9 and shorten the constructed building based on an amendment made to the rule after the construction of super structure of the building. Yet, the Senior counsel pointed out, the petitioner is not seeking regularisation of construction. The petitioner is only seeking to hold an Aeronautical Study at his expense, so that if the construction does not pose any actual threat to Aircrafts, considerable money can be saved and a Hospitality project can come up as designed in the Capital City.
15. Learned counsel Adv. Sri. V. Santharam pointed out that when an NOC was mandatory for construction in the vicinity of Airport, under Section 9A of the Aircraft Act, 1934, the petitioner proceeded with construction illegally without NOC. Ext.P1 would prove that the petitioner was aware of the requirement of NOC from the respondents. Existence of a Rule in the KMBR which is inconsistent with the provisions made under the Aircraft Act, 1934 cannot be an excuse to justify violation of Section 9A of the Act, 1934. WP(C)No.1104/2019 10 The petitioner was heard before passing the impugned orders and the Sub-committee report was made available to the petitioner during the hearing.
16. The learned standing counsel for the respondents further argued that Exts.P2 and P3 building permits indicates that aircraft NOC has been obtained on 22.03.2006. This is actually incorrect, what has been obtained is only a Site Elevation Certificate marked as Ext.P1 in the writ petition. The petitioner applied for NOC from Aircraft Authorities only on 18.03.2014. The petitioner filed the said application only when he was denied building completion certificate as the building constructed by the petitioner exceeded permissible limits.
17. The learned standing counsel argued that one who has violated the law knowingly, cannot seek relief from this Court. Ext.P17 would show that petitioner's request for Aeronautical Study has been declined for reasons. In the case of other buildings, where the respondents have issued WP(C)No.1104/2019 11 NOC, those owners/builders constructed building only after obtaining NOC. The learned standing counsel further stated that respondents 1 and 2 will be invoking provisions of the Aircraft (Demolition of Obstructions caused by Buildings and Trees etc.) Rules, 1994. Section 9B of the Aircraft Act refers for payment of compensation also. In the circumstances of the case, the petitioner is not entitled to any discretionary relief under Article 226 of the Constitution of India. The writ petition is therefore liable to be dismissed.
18. I have heard the Senior Counsel Sri. S. Sreekumar appearing on behalf of the petitioner as also Adv. Sri. V. Santharam, standing counsel representing respondents 1 and 2.
19. The petitioner applied for a building permit with plinth area of 10706.67sq.metres as per Rule 32(2) of the Kerala Municipality Building Rules, 1999. The height restriction under KMBR was 61 metres AMSL. Since the petitioner's site had elevation of 7.307 m, the petitioner WP(C)No.1104/2019 12 could have constructed building upto a height of 53.693 m AGL. As the height of the petitioner's building was 39.5 AGL as per the original proposal, NOC from the third respondent was not received. The petitioner was issued Ext.P2 building permit. Later in order to satisfy the criteria laid down by the Department of Tourism for five star classification, the petitioner proposed to increase the height upto 52.83 metres, which was less than the maximum permissible 61 mtres AMSL. It is the case of the petitioner that the revised plan was approved by the 5th respondent-Chairman, Appellate Committee, Airport Authority of India as per proceedings dated 27.01.2008. With the approval of the first respondent, the piling work started in 2009. Corporation of Thiruvananthapuram renewed Ext.P2 building permit upto 28.01.2013. The building permit which was to expire on 28.01.2013 was again renewed by the Thiruvananthapuram Corporation on 02.08.2013 as per Ext.P4, upto 27.01.2016.
WP(C)No.1104/201913
20. It was on 05.02.2013 that KMBR was amended providing that for buildings in the vicinity of Airports, the height shall be further limited subject to any notification issued by the Government of India under the Aircraft Act, 1934. It was consequent to this amendment that the Corporation of Thiruvananthapuram, for the first time made objections and required the petitioner to produce NOC from the second respondent-Airport Authority of India. Though the Airport Authority of India issued NOC as per Ext.P7 dated 11.03.2015 the permissible top elevation was reduced to 49.26 metres.
21. It is evident that the petitioner started construction after obtaining building permit. Alterations were insisted to the building project and the petitioner obtained clearances for such alterations also from the Corporation of Thiruvananthapuram. Even such alterations were within the permissible limits as regards height prescriptions. It was only when the proviso to Rule 32(2) amended that the WP(C)No.1104/2019 14 Corporation required the petitioner to obtain NOC from Airport Authority of India.
22. The learned standing counsel for respondents 1 and 2 pointed out that Rule 9A of the Aircraft Act was in force during all these times and the petitioner ought to have obtained NOC from the Airport Authority of India. If any provision is therein KMBR relating to height prescriptions, which are not in tune with the Government of India Rules, the respondents 1 and 2 are not responsible.
23. It is to be noted that the petitioner had started construction after obtaining building permit. The petitioner relied on the height prescriptions provided in the KMBR. During the time of initial construction, the petitioner's building satisfied the height prescription provided under the KMBR and Section 9A of the Aircrafts Act. True, any construction exceeding the height restriction provided as per Section 9A within the prescribed radius of an aerodrome, would offend the provisions of the Aircraft Act, 1934. WP(C)No.1104/2019 15
24. However, it is to be noted that the prayer in the writ petition, is not to regularise any illegal construction. The petitioner's only request is to conduct Aeronautical Study at his own expenses. Clause 3(C) of NOC dated 15.07.2016 of the Airport Authority of India annexed to Ext.P17 would go to show that the respondents can clear building height through Aeronautical Study. If Aeronautical Study is conducted and if the height of the petitioner's building as its stands now does not cause any threat to the movement of aircrafts to and fro Thiruvananthapuram International Airport, then the petitioner can avoid demolition of an already constructed building with building permit. In fact, this Court also in Ext.P12 judgment has directed the respondents that if the petitioner makes a request for Aeronautical Study, then the Appellate Authority shall consider the said request favourably as per the Rules for the purpose of determining the height limit stipulated for the area. The Aeronautical Study would evidently show as to whether the building as it WP(C)No.1104/2019 16 constructed now would adversely affect the movement of aircrafts.
25. The prime ground for objection of the respondents against holding Aeronautical Study is that the petitioner has not made an application for Aeronautical Study before construction of the building. All other builders/ owners of building in the area had approached respondents 1 and 2 for NOC before construction exceeding the permissible height. The petitioner herein approached them after effecting the construction. I find that the said argument need not stand in the way of conducting Aeronautical Study since the study will be conducted at the expenses of the petitioner and if the building of the petitioner satisfy the safety requirements of the respondents, it will definitely save considerable money as well as spent human efforts. It will not in any manner adversely affect the interest of respondents 1 and 2 or of the general public either.
26. The other objection raised by the learned WP(C)No.1104/2019 17 standing counsel for respondents 1 and 2 against the conduct of Aeronautical Study is that such study cannot be conducted after construction of the building. Though subsequent to Ext.P12 judgment, the respondents have passed Exts.P17 and P19 orders, there is nothing in Exts.P17 and P19 orders which would indicate that Aeronautical Study cannot be conducted after construction of a building. Though the respondents in their counter affidavit in paragraph 19 have stated that Aeronautical Study is not permissible once the construction is made beyond the limit, no material has been produced before this Court to sustain the said argument. Therefore it will not be safe or advisable to rely on that statement and deny the petitioner an opportunity of availing Aeronautical Study so as to save the construction.
27. In the circumstances, the writ petition is disposed of directing respondents 1 and 2 to conduct Aeronautical Study of the area where the petitioner's building is being WP(C)No.1104/2019 18 constructed. The petitioner may remit the fees/expenses for conducting the Aeronautical Study within a period of 15 days from the date of receipt of a copy of this judgment. Respondents 1 and 2 shall hold the study within a period of two months thereafter. Needless to say that if the Aeronautical Study results in a conclusion that the building of the petitioner would not cause any threat to the movement of aircrafts, then the respondents shall reconsider the the issue of grant of NOC on the basis of the report of Aeronautical Study.
Sd/-
N. NAGARESH JUDGE ncd WP(C)No.1104/2019 19 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF SITE ELEVATION CERTIFICATE DATED 22/03/2006 ISSUED BY THE ASSISTANT ENGINEER, PWD ROADS SECTION, THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF BUILDING PERMIT NO.ZA2/43/2006 DATED 20/07/2006 ISSUED BY THE CORPORATION OF TRIVANDRUM.
EXHIBIT P3 TRUE COPY OF THE RENEWED BUILDING PERMIT DATED 27/01/2010 ISSUED BY THE CORPORATION OF TRIVANDRUM.
EXHIBIT P4 TRUE COPY OF RENEWAL CERTIFICATE DATED 02/08/2013 ISSUED BY THE CORPORATION OF TRIVANDRUM.
EXHIBIT P5 TRUE COPY OF APPLICATION DATED 18/03/2014 FOR NOC SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT AIRPORT AUTHORITY.
EXHIBIT P6 TRUE COPY OF THE VERIFICATION CUM CONCURRENCE CERTIFICATE ISSUED BY THE AUTHORIZED SURVEYOR.
EXHIBIT P7 TRUE COPY OF NOC DATED 11/03/2015 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P8 TRUE COPY OF REVALIDATION APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 16/03/2015.
EXHIBIT P9 TRUE COPY OF LETTER DATED 09/04/2015 ISSUED BY THE 1ST RESPONDENT.Q EXHIBIT P10 TRUE COPY OF APPLICATION FOR APPEAL DATED 27/04/2015 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P11 TRUE COPY OF ORDER DATED 16/10/2015 ISSUED BY THE 1ST RESPONDENT.WP(C)No.1104/2019 20
EXHIBIT P12 TRUE COPY OF JUDGMENT DATED 23/05/2018 IN WPC NO.13572/2015 OF THIS HON'BLE COURT.
EXHIBIT P13 TRUE COPY OF WRITTEN SUBMISSION DATED 10/07/2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P14 TRUE COPY OF NOC GRANTED TO MR. T.S. ASOK BY THE 2ND RESPONDENT.
EXHIBIT P15 TRUE COPY OF NOC GRANTED TO MR. G. CHANDRABABU BY THE RESPONDENT.
EXHIBIT P16 TR5UE COPY OF E-MAIL DATED 16/10/2018 OF THE 1ST RESPONDENT.
EXHIBIT P17 TRUE COPY OF ORDER DATED 08/11/2018 OF THE 1ST RESPONDENT WITH COPY OF REPORT OF THE SUB COMMITTEE.
EXHIBIT P18 TRUE COPY OF REPRESENTATION DATED 21/11/2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P19 TRUE COPY OF MINUTES OF THE 1ST RESPONDENT DATED 18/12/2018.
RESPONDENTS' EXHIBITS:
EXHIBIT R2(a) TRUE COPY OF THE ENTIRE PROCEDURAL DOCUMENTS RELATING TO NOC ISSUED TO M/S ARTECH HOSE,INCLUDING THE APPLICATION AND REPORT AND ORDER PASSED CONSIDERING THE NOC ETC.
EXHIBIT R2(b) TRUE COPIES OF THE ENTIRE PROCEDURAL DOCUMENTS RELATING TO THE GRANTING OF NOC TO M/S SREEDHANYA HOMES PVT.LTD., INCLUDING THE APPLICATION FOR NOC, SITE INSPECTION AND ITS REPORT, AND THE REPORT OF THE AERONAUTICAL STUDY.
EXHIBIT R2(c) TRUE COPY OF THE COMMUNICATION REF.NO.AA1/20012/30/2015-ARI-NO. DATED 18/9/2018.WP(C)No.1104/2019 21
APPLICATION FOR FURTHER HEIGHT, SITE INSPECTION REPORT, APPLICATION FOR AERONAUTICAL STUDY AND THE REPORTOF AERONAUTICAL STUDY AND SUBSEQUENT NOC FOR HIGHER HEIGHT CLEARANCE ETC RELATING TO THE SERIAL NOS. 1 & 2 IN EXHIBIT-P9 RELATING TO M/S OMKAR VENTURES PVT.LTD.
EXHIBIT R2(e) TRUE COPIES OF THE NOC INITIALLY GRANTED, APPLICATION FOR FURTHER HEIGHT, SITE INSPECTION REPORT, APPLICATION FOR AERONAUTICAL STUDY AND THE REPORTOF AERONAUTICAL STUDY AND SUBSEQUENT NOC FOR HIGHER HEIGHT CLEARANCE ETC RELATING THE SERIAL NOS. 1 & 2IN EXHIBIT-P9 RELATING T0 M/S SHREE NAMAN DEVELOPERS PVT LTD EXHIBIT R2(f) TRUE COPIES OF THE NOC INITIALLY GRANTED, APPLICATIONS FOR FURTHER HEIGHT, SITE INSPECTION REPORT, APPLICATION FOR AERONAUTICAL STUDY AND AERONAUTICAL STUDY REPORT, AND NOC FOR HIGHER CLEARANCE ETC RELATIG TO SERIAL NOS. 8,11 & 15 OF EXHIBIT -P9 RELATING TO M/S AYODHYA CONSTRUCTION CO.
EXHIBIT R2(g) TRUE COPIES OF THE NOC INITIALLY GRANTED APPLICATION FOR FURTHER HEIGHT, SITE INSPECTION REPORT APPLICATION FOR AERONAUTICAL STUDY AND AERONAUTICAL STUDY REPORT, AND NOC FOR HIGHER CLEARANCE ETC RELATING TO SERIAL NOS. 8,11&15 OF EBHIBIT -P9RELATING TO M/S VASTU SHILPA.
EXHIBIT R2(h) TRUE COPIES OF THE NOC INITIALLY GRANTED APPLICATIONS FOR FURTHER HEIGHT, SITS INSPECTION REPORT, APPLICATION FOR AERONAUTICAL STUDY AND AERONAUTICAL STUDY RPORT AND NOC FOR HIGHER CLEARANCE ETC RELATING TO SERIAL NOS. 8,11 & 15 OF EXHIBIT-P9 RELATING TO M/S. VISION DEVELOPERS.