Karnataka High Court
M/S Chalet Hotels Limited vs M/S Hindustan Aeronautics Limited on 29 May, 2020
Equivalent citations: AIRONLINE 2020 KAR 1116
Author: B.Veerappa
Bench: B. Veerappa
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2020
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.37571/2013(GM-RES)
BETWEEN:
M/s CHALET HOTELS LIMITED,
HAVING ITS REGISTERED OFFICE AT
RAHEJA TOWER, PLOT NO.C-30,
BLOCK-G, OPP: SIDBI,
BANDRA KURLA COMPLEX,
BANDRA (EAST), MUMBAI 400051.
AND
HAVING ITS BRANCH OFFICE AT
NO.17/2, RAHEJA POINT,
# 202-203, 2ND FLOOR,
MAGRATH ROAD, ASHOKNAGAR,
BANGALORE 560025.
REPRESENTED BY ITS
AUTHORISED SIGNATORY AND
MANAGING DIRECTOR
MR. SURESH SINGARVELU ...PETITIONER
(BY SRI UDAY HOLLA, SENIOR COUNSEL A/W
SRI KAMLESH SAMPAT, ADVOCATE)
AND:
1. M/S HINDUSTAN AERONAUTICS LIMITED,
AIRPORT SERVICES CENTRE
BANGALORE COMPLEX,
BANGALORE 560017.
REPRESENTED BY ITS CHAIRMAN.
2. MR. ASHOK CHUNILAL BAJAJ
S/O CHUNILAL HASSAINGH BAJAJ, DELETED AS PER
R/AT NO.704, 7TH MAIN, ORDER DATED 9.4.2019
HAL II STAGE, INDIRANAGAR,
BANGALORE 560 008.
2
3. MR. AMEET HARIANI
S/O MR. PRATHAP SINGH HARIANI
R/AT CHANDAN, 2ND FLOOR, 62-B,
PEDDAR ROAD, MUMBAI 400026.
4. MR. SACHIN
S/O SHASHIKANT SAPRE
R/AT NO. A 304,
5. MR. BIJU MATHEW
S/O MR. MATHEW P. K.
R/AT NO.B 613,
6. MR. KALYAN SUNDRAM
S/O MR. GANAPATHY,
R/AT NO.A 201,
7. MR. MUKUND PANDURANJ SURANGE
S/O PANDURANJ SURANGE
R/AT NO.B 313,
8. MR. RABINDRA NATH RAUL
S/O DUARI RAUL
R/AT NO.A 307,
9. MR. PAWAN MATHUR
S/O MR. M. P. MATHUR
R/AT NO.A 306,
10 . MR RACHIT GUPTA
S/O MR. JAYA GUPTA
R/AT NO.A 406,
R4 TO R10 ARE AT FLORINA ESTATES,
NO.53, SARJAPUR ROAD,
1ST CROSS, 3RD BLOCK,
KORAMANGALA, BANGALORE 560 034.
11. MEKIN MAHESHWARI,
S/O MR. PRABHU DAYAL MAHESHWARI,
AGED ABOUT 33 YEARS,
FLAT No.215, BLOCK C, RAHEJA RESIDENCY,
3RD BLOCK, KORAMANAGALA,
BANGALORE-560034.
3
12. MANOJ ATTAL,
S/O MR. HARINARAYAN ATTAL,
AGED ABOUT 42 YEARS,
No.L-108, 3RD B MAIN,
SECTOR 6, HSR LAYOUT,
BANGALORE-560102.
13. SUBRATAMITRA,
S/O LATE BHAKTA MOHAN MITRA
AGED ABOUT 48 YEARS,
A 401, MANTRI ELEGANCE,
BANNERGHATTA ROAD,
BANGALORE-560076.
14. SIRISH KUMAR,
S/O J.P.V. (LATE) REDDY, DELETED AS PER
ORDER DATED 9.4.2019
15. SUNIL AGARWAL,
S/O SHRI SHUBHKARANJI HAKIN
16. MANEESH DHIR,
S/O DR. M.P. DHIR,
AGED ABOUT 48 YEARS,
611, EMBASSY TRANQUIL,
8TH MAIN, 3RD BLOCK, KORAMANAGALA,
BANGALORE-560034.
17. MANJUKUCHHAL,
W/O MR. RAJIV KUCHHAL,
AGED ABOUT 42 YEARS,
612, EMBASSY TRANQUIL,
8TH MAIN, 3RD BLOCK, KORAMANAGALA,
BANGALORE-560034.
18. RAJIV KUCHHAL,
S/O MR. R.D. KUCHHAL,
AGED ABOUT 47 YEARS,
612, EMBASSY TRANQUIL,
8TH MAIN, 3RD BLOCK, KORAMANAGALA,
BANGALORE-560034.
19. DILEEP RANJEKAR,
S/O MR. KAMALAKAR,
AGED ABOUT 62 YEARS,
6B, NITISH MAYFAIR,
4
31, KASTURBA ROAD CROSS,
BANGALORE-560001.
20. MR. SANJAY NAYAK,
S/O MR. S.S. NAYAK,
AGED ABOUT 48 YEARS,
529, 17TH D MAIN, 6TH BLOCK,
KORAMANGALA, BANGALORE-560034.
21. MR. SHASHIDHAR PATIL,
S/O MR. LINGANAGOWDA PATIL,
AGED ABOUT 57 YEARS,
PRATHAM, 508, 15TH MAIN,
3RD BLOCK, KORAMANAGALA,
BANGALORE-560034.
22. MS. ZENOBYA S BURJORJEE,
W/O MR. SAROSH N. BURJORJEE
AGED ABOUT 58 YEARS,
288, 18TH D MAIN, 6TH BLOCK,
KORAMANGALA,
BANGALORE-560095.
23. MR. GURTEJSODHI,
REPRESENATED BY POA VINEET CHHABRA,
S/O (LATE) MR. BALBIR S. SODHI,
AGED ABOUT 54 YEARS,
No.14, 80 FEET ROAD, 4TH BLOCK,
KORAMANGALA,
BANGALORE-560034.
24. MR. VINEETCHHABRA,
S/O (LATE) MR. B.K. CHHABRA,
AGED ABOUT 47 YEARS,
No.906, OLYMPUS III, ACROPOLIS,
HOSUR ROAD, BANGALORE-560029.
25. MR. ARNOB ROY,
S/O LATE MR. NIRMALYA ROY,
AGED ABOUT 49 YEARS,
17, 2ND CROSS, 12TH MAIN,
4C BLOCK, KORAMANGALA,
BANGALORE-560034.
5
26. MR. N.S. VINODH, DELETED AS PER
S/O (LATE) MR. N.S. SRINIVASAN, ORDER DATED 9.4.2019
27. MR. SALILPUNALEKAR & DEEPA PUNALEKAR,
S/O SITARAM PURUSHOTTAM PUNALEKAR,
AGED ABOUT 43 YEARS,
1061, SOBHA JASMINE, OUTER RING ROAD,
BANGALORE-560103.
28. MS. KSHITIJAKRISHNASWAMY
W/O MR. SRIDHAR VISWANATHAN
AGED ABOUT 46 YEARS,
IB, LAKESHORE MANOR,
GANGADHAR CHETTY ROAD,
BANGALORE - 560042.
29. MS. TANYA BALI,
W/O MR. VISHAL BALI,
AGED ABOUT 43 YEARS,
3C3, REGENCY PLACE, No.7,
RICHMOND ROAD,
BANGALORE-560025.
30. MR. PANGAL KISHORE NAYAK,
S/O MR. P. SUNDERNATH NAYAK, DELETED AS PER
ORDER DATED 9.4.2019
31. MR. PRASHANTH PRAKASH,
S/O MR. P. M. PRAKASH,
32. MR. MAYANK, PRASAD BHATNAGAR,
S/O MR. RAJESWAR PRASAD,
AGED ABOUT 37 YEARS,
D-89, PRESTIGE OZONE,
WHITEFIELD MAIN ROAD,
BANGALORE-560066.
33. MR. SANJAY SHARMA & RADHIKA SHARMA,
S/O LATE MR. MADAM M.L. SHARMA,
AGED ABOUT 45 YEARS,
FLAT No. 01, INDRAPRASTHAENERO,
9 KINGSTON ROAD, RICHMOND ROAD,
BANGALORE - 560025.
34. MR. G.V. SARATHCHANDRASHEKAR,
S/O MR. G.V. PURUSHOTHAM RAO,
6
AGED ABOUT 48 YEARS,
APT. 3013, SOBHA JASMINE,
OUTER RING ROAD,
BELLANDUR, BANGALORE - 560103.
35. MR. JASSERAND JEAN MICHEL DELETED AS PER
S/O MR. JULES JASSERAND ORDER DATED 9.4.2019
36. MS. ROSEMARY JOSHI,
W/O MR. ASHUTOSHI JOSHI,
AGED ABOUT 38 YEARS,
F-208, REDWOOD, RAHEJA RESIDENCY,
3RD BLOCK, KORAMANAGALA,
BANGALORE-560034.
37. MR. M R RAVISHANKAR,
S/O MR. M.B. RAJASHEKARAIAH,
AGED ABOUT 47 YEARS,
E-505, RAHEJA RESIDENCY,
7TH CROSS, 3RD BLOCK, KORAMANAGALA,
BANGALORE-560034.
38. MS. SANGEETA AGRAWAL,
W/O MR. VINEET AGRAWAL,
AGED ABOUT 49 YEARS,
A1, BRUNTONRUSTOMJI APARTMENTS,
BRUNTON ROAD, BANGALORE-560025.
39. MR. ZARIRBATLIWALA, DELETED AS PER
S/O (LATE) D.J. BATLIWALA, ORDER DATED 9.4.2019
40. MR. VENUGOPAL S REDDY,
S/O MR. S.V. PAPA REDDY,
AGED ABOUT 61 YEARS,
No.780, APPENZELL DRIVE,
HUMMEL TOWN, PA 17036, USA
41. MR. GOUDHAMAN BALASUBRAMANIAN,
S/O MR. BALASUBRAMANIAN,
AGED ABOUT 35 YEARS,
B 605, MANTRI CLASSIC APARTMENTS,
1ST MAIN ROAD,, 8TH MAIN,
SRINIVAGILU, FRIENDS COLONY,
ST. BED LAYOUT, KORAMANGALA 4TH BLOCK,
BANGALORE-560034.
7
42. MR. PANDURANGAKUMARJIGUDA,
S/O MR. SHYAM SUNDER KUMARJIGUDA,
AGED ABOUT 45 YEARS,
402E, PINE BLOCK, RAHEJA RESIDENCY,
3RD BLOCK, KORAMANGALA,
BANGALORE-560034.
43. MR. VIRENDRA PALIWAL,
S/O LATE MR. BALMUKUND PALIWAL,
AGED ABOUT 43 YEARS,
VILLA No.60, PURVAPARKRIDGE,
GOWSHALA ROAD, MAHADEVAPURA,
BANGALORE-560048.
44. MR. THOMAS VARGHESE,
S/O (LATE) MR. P. THOMAS VARGHESE,
AGED ABOUT 53 YEARS,
103, CYPRESS BLOCK, RAHEJA RESIDENCY,
KORAMANGALA 3RD BLOCK,
BANGALORE-560034.
45. MR. SANJAY ANANDARAM,
S/O LATE H.N. ANANDARAM,
AGED ABOUT 49 YEARS,
709, PINE BLOCK, RAHEJA RESIDENCY,
KORAMANGALA 3RD BLOCK, 8TH C MAIN,
BANGALORE-560034.
46. MR. RAKESH BHARDWAJ, DELETED AS PER
S/O MR. K.C. BHARDWAJ, ORDER DATED 9.4.2019
47. MR. SUDHINDRANATHPAI K,
S/O MR. RAMACHANDRAPAI KASTURI,
AGED ABOUT 46 YEARS,
No.308, PURVA IRIS, 54,
M.S.O. COLONY, COX TOWN,
BANGALORE-560005.
48. MR. RITESH SACHDEV
S/O DR. GOVIND SACHDEV
AGED ABOUT 38 YEARS,
E 2419, PALAM VIHAR,
GURGAON 122017
8
49. MR. ARTI JAIN
W/O MR. DAVINDER JAIN,
50. MR. MANOJ SHENOY,
S/O MR. K.R. SHENOY,
51. MR. NAGESWARA RAO POLISETTI, DELETED AS PER
S/O MR. GANGARAJU POLISETTI, ORDER DATED 9.4.2019
52. M/S SIC STOCKS & SERVICES PVT. LTD. DELETED AS PER
REPRESENTED BY SIDHARTHHANDA, ORDER DATED 8.6.2015
53. MS. RESHMI JAIN, DELETED AS PER
W/O MR. PANKAJ JAIN, ORDER DATED 9.6.2019
54. MR. SAIKUMAR SHAMANNA,
S/O LATE R SHAMANNA,
AGED ABOUT 43 YEARS,
No.42, VASWANI WHISPERING PALMS,
NEAR INNOVATIVE MULTIPLEX,
OUTER RING ROAD, MARATHAHALLI,
BANGALORE-560037.
55. MR. KISHORE C NAIR,
S/O MR. PERUMANA KONDONA DELETED AS PER
CHANDRASEKHARAN NAIR, ORDER DATED 9.4.2019
56. MR. RAHUL AGARWAL,
S/O MR. PADAM KUMAR AGARWAL,
AGED ABOUT 38 YEARS,
O-202, PRESTIGE
ST. JOHN'S WOODS APARTMENTS
TAVAREKERE MAIN ROAD,
BANGALORE-560029.
57. MR. NITIN SAREEN
S/O MR. KRISHAN KUMAR SAREEN
AGED ABOUT 36 YEARS,
A-33, BIRCH, TATA SHERWOOD,
BASAVANAGAR,
BANGALORE-560037.
58. MR. PUNEET AGARWAL
POA HOLDER VINEET AGRAWAL,
S/O LATE MAJ. GEN. V.N. AGRAWAL
AGED ABOUT 52 YEARS,
9
A1, BRUNTONRUSTOMJI APARTMENTS,
BRUNTON ROAD,
BANGALORE-560025.
59. MR. DHRUV MAHENDRAJHAVERI,
S/O MR. MAHENDRA JHAVERI
AGED ABOUT 31 YEARS,
No.25A, SARAT BOSE ROAD,
"SINDU APARTMENT" 5TH FLOOR,
FLAT No.5A, KOLKATTA-700020.
60. MR. PANKAJ KULSHRESHTHA,
S/O MR. V.B. KULSHRESHTHA,
AGED ABOUT 41 YEARS,
S-64, GOLDEN ENCLAVE,
AIRPORT ROAD, BANGALORE-560017.
61. MR. MOHAN KUMAR V
S/O MR. (LATE) M.R. VENKATAPPA,
AGED ABOUT 43 YEARS,
No.702, REDWOOD, RAHEJA RESIDENCY,
3RD BLOCK, KORAMANGALA,
BANGALORE-560034.
62. MR. N. ARJUN
S/O MR NARAIN
AGED ABOUT 57 YEARS,
S2, ITTINA SIRI, 160,
KORAMANGALA 1ST BLOCK,
BANGALORE
63. MR. R. SIVADAS, DELETED AS PER
S/O MR. K. RAGHAVA MENON ORDER DATED 9.4.2019
64. MR. JOHN LOUIS PINTO,
S/O MR. LIGOURI SIMON PINTO,
AGED ABOUT 76 YEARS,
2302, OAKWOOD APTS, 1ST CROSS,
8TH MAIN, III BLOCK, KORAMANGALA
BANGALORE-560034.
65. MR. PREM PRADEEP DELETED AS PER
S/O MR. HARISH CHANDRA ORDER DATED 9.4.2019
10
66. MR. MURALI MAHALINGAM, DELETED AS PER
S/O MR. K. MAHALINGAM ORDER DATED 8.6.2015
67. MR. VENKATRAMAN M IYER &
VIJAYA VENKAT
S/O MR. MADHAVAN IYER,
AGED ABOUT 55 YEARS,
B-405, RAHEJA RESIDENCY
3RD BLOCK, KORAMANGALA,
BANGALORE-560034.
68. MR. PAVANKARETI DELETED AS PER
S/O MR. SRINIVASULU REDDY KARETI ORDER DATED 9.4.2019
69. MR. KUSH SHAH,
S/O MR. N.K. SHAH,
AGED ABOUT 40 YEARS,
202, SURAJ VISTA, K.D. MARG,
PRABHADEVI,
MUMBAI-400028.
70. MR. Y.C. RAMA REDDY, DELETED AS PER
S/O MR. Y. KOTAREDDY, ORDER DATED 9.4.2019
71. MR. MARTAND RAMADHYANI,
S/O R.K. RAMADHYANI,
AGED ABOUT 61 YEARS,
E-14/9, VASANT VIHAR,
NEW DELHI-110057.
72. MR. K. ANJANAMURALI, DELETED AS PER
S/O (LATE) MR. K.N. MURALI, ORDER DATED 9.4.2019
73. MR. V. RENGANATHAN,
S/O MR. VENKATAPATTY,
AGED ABOUT 51 YEARS,
S1/S2, ITTINA SIRI, 160,
KORAMANGALA 1ST BLOCK,
BANGALORE-560034.
74. MS. UJWALAPRABHU,
W/O MR. RAMESH JAYARAMAN,
AGED ABOUT 48 YEARS,
12, DEEPAK APARTMENTS
22, 5TH AVENUE,
11
BESANT NAGAR,
CHENNAI-600090. ...RESPONDENTS
(BY SRI ANANTH MANDAGI, SENIOR COUNSEL A/W
SRI PRADEEP SAWKAR, ADVOCATE FOR C/R1;
SRI SAJAN POOVAYYA, SENIOR COUNSEL FOR
SMT. NALINA MAYEGOWDA, ADVOCATE FOR R3, R11 TO R13,
R16 TO R25, R27 TO R29, R32 TO R34, R36 TO R38, R40 TO
R45, R47, R48, R54, R56 TO R62, R64, R67, R69, R71, R73 AND
R74; SRI ADITHYA SONDHI, SENIOR COUNSEL A/W SRI KARAN
JOSEPH, ADVOCATE FOR R4 TO R10;
VIDE ORDER DATED 9.4.2019 R2, R14, R15, R26, R30, R31,
R35, R39, R46, R49, R50, R51, R52, R53, R55, R63, R65, R66,
R68, R70, AND R72 ARE DELETED
...
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
LETTER DATED 16.8.13 ISSUED BY THE RESPONDENT VIDE
ANNEXURE-AQ, DIRECT THE RESPONDENT TO PERMIT THE
PETITIONER TO CONSTRUCT UPTO THE MAXIMUM HEIGHT
WHICH DOES NOT ADVERSELY AFFECT AIRCRAFT
OPERATIONS AS MAY BE DETERMINED IN THE AERONAUTICAL
STUDY TO BE DETERMINED IN THE AERONAUTICAL STUDY TO
BE CONDUCTED BY THE RESPONDENT THROUGH AA1 OR
ICAO OR ANY OTHER RECOGNISED AGENCY ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner in the above writ petition has sought for a writ of certiorari to quash the letter bearing No.ASC/DGM(AO)/131/526/2013 dated 16.08.2013, issued by the 1st respondent vide Annexure-AQ, canceling the No Objection Certificate issued in favour 12 of the petitioner and for a writ of mandamus to direct the respondent to permit the petitioner to construct upto the maximum height which does not affect the aircraft operations as may be determined in the aeronautical study based on the notified parameters for HAL airport as on the date of issue of the NOC, to be conducted by the respondent through Airports Authority of India or International Civil Aviation Organization or any other recognized agency and direct the 1st respondent to revalidate the No Objection Certificate dated 28.10.2011 issued by it, for a further period of five years from the date of the final order, by setting aside cancellation of the NOC.
I. Factual Matrix of the Case
2. It is the case of the petitioner that, the petitioner owns the property bearing Sy.Nos.21, 22, 42, 52 and 1B situated at Koramangala Industrial Layout, Jakkasandra village, BBMP Ward No.68, Bengaluru, 13 wherein, it is constructing a large residential complex comprising of 2 basements, ground and 17 upper floors in multiple wings. Construction of 5 wings was completed upto 17th upper floors as far back as in June to September 2012, inter alia on the basis of a No objection Certificate ('NOC' for short) dated 28.10.2011 issued by the 1st respondent. The said property is within the consideration zone of HAL Aerodrome and therefore, construction of structures therein requires a NOC from the 1st respondent. It is further case of the petitioner that the 1st respondent was vested with the responsibility to issue NOC for construction of structures around HAL aerodrome by Notification No.S.O.84(E) dated 14.01.2010 issued by the Ministry of Civil Aviation, Government of India, in exercise of powers conferred under the provisions of Section 9A of the Aircraft Act, 1934, to regulate construction for the safety of aircraft operations. Prior to the said notification, similar notification relating to HAL were 14 issued by the Airports Authority of India ('AAI' for short). It is further case of the petitioner that HAL aerodrome is listed at item 5 in Annexure IIIC of S.O.84(E) notification. As provided in Clause 1 of S.O.84(E), the provisions in Annexures I and II govern the HAL aerodrome. As provided in Clause 2(b), the respondent is responsible for issuing NOC in accordance with the notification- S.O.84(E). Therefore, provisions of Annexures I and II are fully applicable to the 1st respondent. The practice and procedure adopted by the 1st respondent regarding NOCs is the same as followed by the AAI. The requirements include a surveyor's report of having surveyed the Site Location Co-ordinates in WGS-84 (deg min sec) format and Site Elevation Certificate from Government Body, viz., Municipal Authority/Corporation/etc., undertakings in Form 1A and 1B, etc. to be submitted after applying for the NOC. 15
3. In Bengaluru, the practice and procedure followed by the Municipal Authority i.e., Bruhat Bengaluru Mahanagara Palike ('BBMP' for short) to issue site elevation certificate is verified by Government of Karnataka aided autonomous institution, such as Dr. Ambedkar Institute of Technology. The petitioner followed the aforesaid procedure and appointed M/s Precision Surveys (India) Pvt. Ltd., ('the surveyor'), a reputed surveying agency to carry out the survey. The surveyor inspected the site, conducted the survey, determined and certified the value as stated in its certificate dated 05.09.2011. The values submitted by the surveyor were checked and verified and were certified to be correct by Dr.Ambedkar Institute of Technology ('the Institute') as stated in its certificate dated 05.09.2011. The petitioner filed the requisite application dated 21.09.2011 with the 1st respondent for issue of NOC for a structure upto 25 upper floors with a maximum height of 110 meters. The said application 16 was reviewed by the NOC Committee of HAL, as stated in 1st respondent's letter dated 28.09.2011, whereby, it directed the petitioner to submit revised documents, restricting the height to 62 mtrs (as against the height of 110 mtrs applied for earlier). The BBMP, through its Assistant Director, Town Planning, issued a Certificate of Elevation dated 30.09.2011, as per the letter of Dr. Ambedkar Institute of Technology. As directed by the 1st respondent on the recommendation of its NOC Committee, the petitioner filed the revised documents along with letter dated 03.10.2011.
4. The 1st respondent, considering the entire material on record, issued the NOC dated 28.10.2011, vide Annexure-A for construction of the proposed residential building with a height of 62 meters i.e., 932 meters Above Mean Sea Level ('M AMSL' for short) and the said NOC was issued with the approval of the Competent Authority, with certain conditions. On the 17 basis of the said NOC, the petitioner obtained sanction to modified plans for construction of the residential building with 10 wings comprising of 2 basements, ground and 17 upper floors (upto 17 floors) and club house, and commenced and carried out the construction as per the modified plan dated 24.02.2012 issued by the competent authority. It is further contended that the Phase I comprising of 5 wings (B to F) were completed upto 17th floor as long back as in June to September 2012 and finishing works are under process therein. Phase II comprises of 6 wings (A, G, H, J, K and proposed wing L. There is no wing 'I'). Wing A was completed upto the 15th floor. Wing G was completed upto the 13th floor, wing H was completed upto 12th floor and wing J was completed upto 11th floor. The floors referred are the upper floors. The petitioner has spent more than Rs.400 crores till the end of July 2013 for the said project. Out of the total number of the proposed 289 flats in the 10 wings, 202 18 flats have been booked by flat purchasers. From these 289 flats, 102 flats are on the 12th to 17th floors in the 10 wings, out of which 70 flats have been booked by various purchasers. The purchasers have paid various amounts for the flats. Several banks and financial institutions have given loans for the flats and the project, inter alia by creation of a security interest on the said flats and the project. There has been no complaint of any obstruction received by the petitioner regarding aircraft operations or safety, at any time over the last about one year during which the structures, the full height upto 17th floor as permitted by the said NOC, have been in existence.
5. It is further contended that, petitioner was shocked and surprised, because, after lapse of nearly a year after issue of the NOC, petitioner received a letter dated 15.09.2012 from the 1st respondent, alleging that the elevation submitted by the petitioner (870 mtr) 19 vastly differs from the data available with the 1st respondent. There was no detail or description of the data referred in the said letter and stated to be available with the respondent, or any indication of when such data became available; whether it was new data or data available/considered at the time of the NOC Committee restricting the height to 62 mtrs or the Competent Authority approving grant of the said NOC. In the said letter, it was stated that there could be a reduction in the permissible height above ground level, and petitioner was requested to carry out the re-survey for purpose of finding the elevation in the presence of HAL- NOC Committee and petitioner sought a meeting with the Officers of the 1st respondent and met them at their office on 04.10.2012. In the said meeting, petitioner, inter alia offered to carry out a comprehensive survey and follow applicable procedure for a conclusive solution and suggested to review the matter in a further meet considering the fact that the matter was of a 20 highly technical nature are that there are very few persons having the specialized knowledge and experience to effectively deal with the peculiar situation in the present case.
6. It is further contended that 1st respondent- HAL, it is primarily a public sector undertaking carrying on manufacturing activity, and the responsibility to issue NOCs was entrusted to them very recently in 2010. Consequently, the Officers of the 1st respondent were themselves not completely sure of the conclusive way forward. It is further case of the petitioner that, after lapse of some time, 1st respondent sent letter dated 19.02.2013 advising to carry out a resurvey in the presence of the HAL-NOC Committee. The 1st respondent also wrote a letter dated 21.02.2013 to the BBMP indicating that there is a doubt about the accuracy of the ground elevation and the difference could be in the range of 15-20 meters. That letter was 21 not marked or sent to the petitioner. The petitioner was understandably alarmed at the doubt raised and the consequences regarding air safety and sought advice on how to conclusively ascertain the maximum permissible height which would not adversely affect aircraft operations. The petitioner also sent a reply dated 15.03.2013 to the 1st respondent setting out the complete facts showing that the petitioner had followed the practice and procedure and filed the requisite documents and thereafter, 1st respondent issued NOC. It is further contended that the petitioner was advised that in view of the structure having been completed upto 17 floors, an aeronautical study would be necessary to conclusively determine the maximum permissible height which would not adversely affect aircraft operations, in accordance with the applicable criteria of Anex 14 of ICAO and as provided in S.O.84(E) notification. Therefore, the petitioner requested Mr.R.C.Khurana (the retired Executive Director, 22 Airports Authority of India and who was the earlier Chairman of the NOC Committee of the Airports Authority of India), to conduct a detailed aeronautical study and confirm the maximum permissible height for aircraft safety, who, after conducting Aeronautical Study, submitted the Aeronautical Study Report ('ASR' for short) dated 12.03.2013 to the petitioner. The said report, inter alia confirms that from AGA and Procedure for Air Navigation Services ('PANS' for short) Obstract Protection Surface ('OPS' for short) criterion, the height is restricted to 964 M AMSL.
7. It is further case of the petitioner that, petitioner's anxiety regarding air safety were justifiably alleviated after the said findings of the ATM expert as set out in the ASR. The ASR confirmed that the existing structure upto 17 floors was below the said 964/957 mtr AMSL even assuming (for the sake argument) that there was a possible 15/20 meters difference in the 23 ground level as alleged by the 1st respondent i.e., even if the ground levels were 885/890 meters as alleged by the 1st respondent on the basis of the Maps of Survey of India, the structure with the height of 62 meters as constructed would reach a maximum height of 947/953 meters AMSL, which was still below the aforesaid maximum permissible height of 964/957 mtr AMSL which would not adversely affect aircraft operations. It is further case of the petitioner that, the 1st respondent by letter dated 28.03.2013, asked for re-survey in the interest of air safety and stated that no surveyor or certifier was authorized by HAL-NOC-Committee to survey or to certify the location and elevation of a site, that 1st respondent insist only on 'Location and Elevation Certificate' from BBMP, the 1st respondent's NOC Committee has no role in surveying and verifying the elevation of a site and the practice being followed by AAI is adopted by HAL. Thereby, 1st respondent 24 effectively precluded a re-survey by the petitioner through any private surveyor or certifier.
8. It is further case of the petitioner that, 1st respondent had expressly admitted in the letter dated 28.03.2013 that the 1st respondent's NOC Committee did not verify the site elevation from the co-ordinates certified by the surveyor/institute/BBMP, by comparing them with the site elevation given in the Survey of India Maps. It is the duty of the 1st respondent to provide Site Elevation details and site elevation data was available to Survey of India Maps prior to application and grant of NOC. But the 1st respondent did not perform its duty of verifying the data available with it since inception, and now, seeks to blame and shift the burden on to the petitioner by relying on unreasonable disclaimers and conditions, in paragraph 3 of the NOC. It is further contended by the petitioner that the 1st respondent, by the letter dated 12.04.2013, for the first time, claimed 25 that, it is found that the site elevation varies from the data available with it, such as the elevation of nearby sites and marks. Again, the 1st respondent requested the petitioner, in the interest of air safety, to have a re- survey conducted by a government agency like Survey of India ('SOI' for short) or Karnataka State Remote Sensing Application Centre ('KSRSAC' for short) to measure the elevation and geographical co-ordinates of the site. Thus, the object of the survey is in the interest of air safety, which can be conclusively ascertained only by an aeronautical study as per notification S.O.84(E) read with Annex 14 of ICAO. Accordingly, by the letter dated 20.05.2013, petitioner approached SOI for the survey, filed the plans and enquired about the fee to be deposited. By letter dated 21.05.2013, the petitioner informed the 1st respondent that they have approached SOI and are following up with SOI for the survey as desired by the 1st respondent. But, the 1st respondent did not forward the demand draft provided by the 26 petitioner for the fees of SOI as required by SOI and SOI did not carry out any survey.
9. When things stood thus, the 1st respondent by the letter dated 20.05.2013, abruptly and wrongly sought to advise the petitioner to suspend construction of all the towers near the structure under dispute (i.e., the 5 completed wings upto the 17th floor), till the survey to find out the elevation of the site is carried out by SOI and the permissible top elevation at the site is arrived at, based on the survey report. Thereafter, the petitioner met the 1st respondent's Officers at their Office on 21.05.2013 and appraised them of the various material facts, including the matters being pursued with SOI and with AAI and discussed regarding the letter for suspension of work. As per the said discussion, the petitioner agreed to suspend the vertical construction temporarily as more particularly set out therein. It was stated by the petitioner that the proposed survey and 27 aeronautical study would reconcile the issue and clear all doubts and that the petitioner would revert on completion of the process with SOI and AAI. Accordingly, same was communicated by the petitioner to the 1st respondent on 24.05.2013. The petitioner was informed that AAI had written to the 1st respondent and indicated its willingness to conduct the study, if the 1st respondent approached AAI and tendered the fees of Rs.22,47,200/-. However, 1st respondent did not respond or take any steps whatsoever, in this regard. The petitioner had agreed to bear the costs of Rs.22,47,200/- accordingly, delivered the demand draft in favour of AAI to the 1st respondent and requested to do the needful. However, the 1st respondent, by the letter dated 07.08.2013, has incorrectly and for the first time stated that, 'HAL has not advised you to get the aeronautical study done by AAI' and asked the petitioner to take back the demand draft claiming that HAL was a third party. By the letter dated 14.08.2013, 28 the 1st respondent, returned the demand draft of Rs.22,47,200/- to the petitioner.
10. It is further case of the petitioner that, in the meanwhile, the BBMP had sent a letter dated 05.06.2013 to the 1st respondent, inter alia requesting the 1st respondent to conduct the resurvey and confirm whether the building is in conformity with permissible parameters. The petitioner, by the letter dated 24.06.2013, replied to the BBMP stating that, it had already initiated the desired process for measuring the site elevation and for the aeronautical study and would revert with the reports on completion of the process with SOI and AAI. Since it did not appear that SOI would carry out the survey applied for by the petitioner, the 1st respondent by its letter dated 21.06.2013, informed the petitioner to consider the KSRSAC as an alternative to carry out the survey of the site. Thereafter, the petitioner repeatedly contacted SOI, who 29 finally indicated that it would require the 1st respondent to deposit Rs.15,000/- towards the fees. Accordingly, by letter dated 11.07.2013, the petitioner delivered the original demand draft for the fees of Rs.15,000/- to the 1st respondent with a request to forward the same to SOI with a letter for initiating the process of the survey. But, the 1st respondent, by the letter dated 27.07.2013, inter alia informed the petitioner that the 1st respondent has requested KSRSAC to give priority in carrying out the survey. Accordingly, KSRSAC, by the letter dated 29.07.2013, informed the petitioner about the fees for providing latitude, longitude and MSL by carrying out DGPS field survey work and fly leveling survey or auto levels. In the meanwhile, 1st respondent, by the letter dated 31.07.2013, returned the demand draft fro Rs.15,000/- which petitioner had provided for the payment to SOI. Thereafter, petitioner, by the letter dated 03.08.2013, addressed to the KSRSAC, requested 30 for a revised pre-receipt bill including therein charges for the aeronautical study.
11. When things stood thus, on various correspondences between the petitioner, 1st respondent and the agencies for aeronautical study stated supra, 1st respondent passed the impugned Order dated 16.08.2013 canceling the NOC granted. Hence, the present writ petition is filed for the relief sought for.
II Objections filed on behalf of the 1st respondent-HAL
12. The 1st respondent has filed objections to the main writ petition on 5.9.2013 contending that the writ petition filed for the relief sought for is not maintainable and is liable to be dismissed. It is further contended that the respondent-Company is incorporated under the provisions of the Companies Act, 1956 having its Registered Office at Bangalore and it is the Government Department and primarily a Public Sector Undertaking 31 coming under the Control of Department of Defence Procurement, Ministry of Defence, Government of India. One of the Divisions of the respondent-Company is the Airport Services Centre (ASC) which deals with various aspects of Air Traffic Management and is also directly involved in testing activities for Pilots and Prototypes.
13. It is further contended by the 1st respondent that the provisions of the Aircraft Act, 1934 (for short, 'the Act') has been enacted to make provisions for the control of the manufacture, possession, use, operation, sale, import and export of Aircrafts and in furtherance of the said object, Section 9-A empowers the Central Government to prohibit or regulate construction of buildings and also restrict the height of such buildings for the purposes of ensuring safety of Aircraft operations. The provisions of Section 9-A(I)(i) provides that the Central Government may issue a Notification directing that no building or structure shall be 32 constructed or erected on any land within 20 Kms., from the Aerodrome Reference Point (ARP) and also direct the owner or person having control of such building/structure to demolish such building or structure. Section 9-A(I)(ii) provides that the Central Government may by such notification direct that no building or structure higher than such height as may be specified in the notification shall be constructed or erected on any land within such radius not exceeding 20 Kms from the ARP. Further, it stipulates that where the height of any such building within the said radius is higher than that stipulated in the notification, the owner or person in control of the said structure can be directed to demolish the building so as to conform to the stipulated height. In pursuance of the provisions of Section 9-A of the Act, the Central Government has issued a Gazette Notification dated 14.1.2010 regulating the constructions in and around different Aerodromes. Admittedly the HAL Aerodrome is a Defence Aerodrome 33 as may be seen from Annexure-III C to the notification Annexure-B. The height restriction for construction of any building within four kilometers radius from the HAL ARP is 45 meters from the Aerodrome elevation. The Aerodrome elevation of HAL Airport has been notified as 888 meters in the notification, Annexure-B. Adding the maximum permissible height of 45 meters, the maximum permissible height of any building within Inner Horizontal Surface (IHS) of HAL Airport is 888+45 equivalent to 933 meters. The data available with HAL Airport indicates that the elevation of the HAL Airport is 887.5 and hence, the respondent has taken the lower figure i.e., 887+45 meters, the maximum permissible limit and therefore, the maximum permissible limit/height would work out to 932 meters. Clause 1.4 of the Notification provides for dimension and permissible height of Inner Horizontal Surface. Since the runway length of HAL Airport is 3306 meters, above 1800 meters, item No.4 of Clause 1.4.1 would apply and 34 it stipulates that the maximum permissible height of Inner Horizontal Surface should be at 45 meters both in respect of instrument and non-instrument runways.
14. The 1st respondent further contended that it issued NOC purely on the basis of the material provided by the petitioner in respect of the elevation of the sital area where construction was sought to be put up wherein the elevation has been shown as 870 meters above the Mean Sea Level. It did not do any independent survey of the site, where the petitioner intended to put up construction and solely on the basis of the material provided by the petitioner, NOC Dated 28.10.2011 was issued as per Annexure-A. However, it has been clearly specified in the said NOC that the construction shall not exceed 932 meters above the Mean Sea Level and if at any stage, it is established that the data tendered by the applicant is actually different on site which would adversely affect Aircraft operation, 35 the structure in respect of which NOC was issued will have to be demolished at its own cost. Since the notification, Annexure-B, clearly stipulates the maximum elevation at 932 meters above Mean Sea Level and any construction above such height would adversely affect Aircraft operations, since the Central Government only after undertaking such study relating to Aircraft operations, has stipulated the height restrictions in the said notification and there is no requirement for any authorities including Airport Authority of India to undertake any fresh study regarding the adverse affect of the height sought to be achieved.
15. It is further contended by the 1st respondent that the primary purpose of issuing NOCs to high rise buildings is to restrict obstacles within the imaginary limiting surfaces called Obstacle Limitation Surfaces (OLS) and any penetration of the limiting surfaces 36 endangers safety. The Gazette Notification dated 14.1.2010 has been developed and promulgated keeping in view the operation at Civil Aerodromes. At para 2(b) of the Gazette Notification, it is categorically stated that for Defence Aerodromes, Defence Authorities shall be responsible for issuing NOCs in accordance with the Notification and subject to any other restrictions and conditions which such authorities deem fit. Under the circumstances, imposition of additional restrictions or conditions are necessary due to the nature of operations and traffic characteristics which are as under:
(a) Operation of Single Engine Aircrafts;
(b) Single occupancy Cockpit and consequent High Cockpit workload;
(c) Very high rate of descent, Climb and Turn;
(d) Higher sped of operation including higher landing speed;
(e) formation flying;
(f) Low endurance flying;
(g) Low level flying requirement;37
(h) Tactical combat training (sudden variations in altitude and direction);
(i) Large number of Aircrafts launched
and recovered within short
durations;
16. HAL Aerodrome is a unique Defence
Aerodrome in comparison to all other Defence
Aerodromes for the following reasons:
(a) HAL is the sole premier Aircraft, Design and Manufacturing Organisation in the country promoting a safe test flying environment which is critical for National Defence;
(b) Flying operations at HAL involve test
flying of experimental, unproven,
developmental Aeroplanes and
Helicopters;
(c) Test flying of prototypes and pre-
production models;
(d) Special exercises are carried out
such as "Practice Forced
38
Landing",(PFL) which involves an
unconventional approach to land;
(e) Carrying out Single Engine landing of a multi engine Aircraft for test purposes;
(f) Flying in poor weather conditions (low visibility);
(g) Switching off engines and re-ignition in mid-air;
(h) Post production Test flying.
The nature of work stated supra carried out in HAL Aerodrome entail a high level of risk and hence, safety margins from the obstacle on ground around the Airport are essential and therefore, additional restrictions are imposed such as no violation of obstacle limitation surface shall be permitted under any circumstances as they are inviolable and non-negotiable and also as a corollary, no requests for Aeronautical studies in the 39 event of a violation of the said surface shall be entertained.
17. It is further contended by the 1st respondent that the petitioner-Company is a Mumbai based Company involved in building and construction of residential and commercial properties. Since the site at which the petitioner proposed to undertake construction activity fell within the HIS of HAL Aerodrome, an application seeking 'No Objection' was filed on 21.9.2011 by the petitioner along with an undertaking that they proposed to construct to the maximum height of 110 meters and enclosed a Certificate issued by M/s Precision Surveys (India) Private Limited dated 5.9.2011 depicting the MSL level of the site to be 870 meters. Another certificate issued by the Professor and Head, Department of Civil Engineering, Dr. Ambedkar Institute of Technology on the very same date, was produced certifying that the Latitude, Longitude and 40 MSL level submitted by M/s Precision Surveys was found to be correct upon verification. On receipt of the said application, it informed the petitioner by letter dated 28.9.2011 that the height clearance is restricted to the height of 932 meters and therefore, the petitioner was asked to submit revised undertaking along with building plans/revised elevation and location plan to respondent restricting the same to 932 meters AMSL. Therefore, the petitioner filed another application dated 3.10.2011 along with a revised drawing and also gave an undertaking restricting the construction upto 932 meters AMSL, pursuant to which, it issued 'No Objection Certificate' dated 28.10.2011 to the petitioner.
18. It is the further contention of the 1st respondent that in the 'No Objection Certificate' dated 28.10.2011, the same was being issued on the express understanding that the site elevation of the proposed building is 870 meters AMSL and therefore, a structure 41 to the height of 62 meters was permissible (870+62=932 meters AMSL). It was also clarified therein that in the event, at any stage, it was established that the said data is actually different from the data tendered along with the application, then the structure would have to be demolished at the cost of the petitioner and therefore, on their own interest, it was advised to verify elevation and other data furnished before embarking on the proposed construction. It was also clarified that the petitioner could be called upon to demolish the structure in whole or part pursuant to the provisions of Section 9-A of the Act, or any other notifications issued pursuant to the same.
19. It is the further contention of the 1st respondent that during August-September 2012, eight months after the issuance of 'No Objection Certificate', it conducted a random check of NOC applications with Survey of India maps, which revealed that there was 42 vast difference in AMS Levels between what was submitted by the petitioner and the data available with them. A copy of the Survey of India map pertaining to Bangalore District is produced as Annexure-R1. Therefore, the petitioner was put on notice of the same on 15.9.2011 and was once again informed that the 'NOC' was issued based on the express understanding that the site elevation tendered was incorrect and therefore, in view of the vast difference with the available data, the petitioner was advised to carry out re-survey of the proposed site in the presence of the HAL, NOC Committee within 30 days at the mutually convenient date and time. Inspite of the said notice, neither positive action was taken nor was any response given regarding the same by the petitioner. In view of the evasive attitude of the petitioner in not conducting a re-survey as advised, it was constrained to issue another reminder on 19.2.2013 (Annexure-O) reminding the petitioner to carryout a re-survey in presence of the 43 HAL-NOC-Committee within 30 days at a mutually convenient date and time.
20. It is the further contention of the 1st respondent that on 15.3.2013, the petitioner for the first time replied by issuing a letter stating that the co- ordinates and AMSL values were determined by reputed company (allegedly authorized by HAL to conduct topographical surveys) and therefore, stated that the construction activity was in order and were willing to provide further clarifications on the same. In the meanwhile, it appears that the petitioner also conducted an Aeronautical Study on its own without any requirement or advice from HAL in this regard by an Aviation Consultant, who submitted a report on 12.3.2013. However, the report disclosed that the study was conducted on the basis of data available in the public domain and there may be minor variations to an extent of 5% (which is a very high margin in Defence 44 Aviation). The said Aeronautical Study was conducted on the petitioner's request to examine the impact of a structure at the height of 970 meters AMSL and it was found that the structure was restricted to an height of 964 meters AMSL. The petitioner was not required to conduct any Aeronautical Study and the only requirement for them was to conduct a re-survey of the site to arrive at the correct site elevation which cannot be done through an Aeronautical Study and can only be done by a ground level survey on the basis of the Longitude and Latitude co-ordinates of the construction site.
21. It is further contended that on 28.3.2013, respondent informed the petitioner by the letter that no surveyor or certifier is authorized by HAL and HAL insists on Location and Elevation Certificate from a Local Municipal Authority and once again advised to conduct a re-survey in view of the vast difference in 45 AMS Levels between what was submitted by the petitioner and the data available with it. On 12.4.2013, it informed the petitioner that they have to conduct an authentic survey by a Government Agency, such as the Survey of India or Karnataka State Remote Sensing Application Centre (KSRSAC). On 15.5.2013, the 1st respondent issued a letter to the Survey of India requesting them to carry out survey and submit the report directly wherein the scope of the survey was also mentioned and simultaneously issued a letter to the petitioner informing that Survey of India has agreed to undertake the survey and to co-ordinate with them to ensure that the same is completed in a timely manner. The petitioner, accordingly, co-ordinated with the Survey of India to carry out the said survey. In the meanwhile, the 1st respondent issued a letter dated 20th May, 2013 to the petitioner advising them to stop further construction until the survey is carried out and the permissible Top Elevation is arrived at. Responding 46 to the said letter, the petitioner on 20.5.2013 stated that they have suspended vertical construction activity and also informed that the proposed survey would reconcile the issue.
22. But surprisingly, for the first time, the petitioner stated that they had undertaken an Aeronautical Study with the AAI inspite of no advice having been given by it to that effect. Thereafter, the petitioner had also issued a letter to the Chairman, AAI stating that they are required to approach AAI to urgently conduct an Aeronautical Study which is wholly contrary to the correspondence being exchanged. It was never its case that it was required to conduct an Aeronautical Study, but in fact, it was consistently advising the petitioner to have the field survey done by either Survey of India or Karnataka State Remote Sensing Application Centre (KSRSAC). Inspite of several reminders, the petitioner failed to conduct the survey 47 through the Survey of India and therefore, on 21.6.2013, the petitioner was informed to alternatively contact the Director, KSRSAC to carry out the survey in order to avoid any further delay. On 25.6.2013, the 1st respondent was informed by the KSRSAC that they are willing to take up the field survey at the site of the petitioner and also that they had the requisite expertise to do so. Accordingly, it made a request dated 27.7.2013 to the KSRSAC to give priority to the survey proposed to be conducted by the petitioner. Obliging to its request, the KSRSAC issued a pre-revised bill on 29.7.2013 for the Digital Global Positioning Systems Field Survey Work to provide Latitude, Longitude and AMS levels. The survey was tentatively scheduled to be conducted on 5.8.2013. On 3.8.2013, the petitioner issued another letter to KSRSAC informing them that the survey should also include an Aeronautical Study to determine maximum permissible height and requested 48 them to include charges for the Aeronautical Study in the pre-revised bill.
23. It is further contended that on 7.8.2013, it wrote another letter to the petitioner stating that they have failed to pay the fees and get the survey done by KSRSAC inspite of it having been scheduled to be held on 5.8.2013 and that the survey of the site had nothing to do with an Aeronautical Study. The petitioner was informed that they were necessarily marginalizing the issue and further it was quite surprising that they had sent to the HAL, a Demand Draft drawn in favour of AAI to conduct an Aeronautical Study. Inspite of no advice having been given to that effect, the petitioner was advised to get the survey done by KSRSAC and report the same before 16.8.2013 failing which suitable action would have to be taken. The petitioner responded to the said letter on 14.8.2013 and once again insisted for Aeronautical Study inspite of being informed of the 49 difference between Civil and Defence Aircraft activities. Even as on 16.8.2013, the petitioner failed to submit a re-survey report conducted by KSRSAC and therefore, left with no other option, it was constrained to cancel the 'No Objection Certificate' on 16.8.2013. Accordingly, the petitioner was informed that for re- issuance of the 'NOC', a survey report from KSRSAC should be submitted showing AMS Levels. It is against the said information, the present writ petition is filed.
24. It is the further case of the 1st respondent that the petitioner has contended that the point on controversy can be reconciled by conducting an Aeronautical Study by the AAI on the basis of the ICAO guidelines at Annex-14. It is respectfully submitted that the Airports Authority of India or the International Civil Aviation Organization (has come into existence pursuant to the Chicago Convention, 1944) are only concerned with Civil aircraft operations and does not 50 regulate any Aerodromes which are of Defence character and Aeronautical Study can be conducted by AAI in respect of Civil Airports only. It is further contended that on 6.9.2011 a letter came to be issued by the AAI to M/s Shobha Developers Limited, Bangalore informing that AAI conducts Aeronautical Study only in respect of Civil Airports. Accordingly, a letter dated 7.8.2012 was addressed to M/s Britania Industries Limited stating that Aeronautical Study cannot be done by AAI since Bangalore Airport is a Defence Aerodrome. Copy of the letter of the KSRSAC dated 25.6.2013 along with the procedure adopted by them for conducting the survey AAI has also made it abundantly clear in their letter dated 25.6.2013 that they cannot accept individual applications for Aeronautical Study for sites which fall within its jurisdiction. It is only in the event, if the HAL approaches AAI to conduct the same, it would do so. It is further contended that the AAI do not conduct Aeronautical Study even for the purpose of issuance of 51 NOCs around Civil Aerodromes. As stated, the point in dispute is the AMS Level of the construction site which can be ascertained only by a field survey. Therefore, the 1st respondent sought to reject the writ petition.
25. The 1st respondent has denied the averments made in each paragraph of the writ petition by filing statement of objections, contending that there is no arbitrariness, illegality or lack of application of mind as urged by the petitioner in cancellation of NOC as the same is being done for the detailed reasons stated therein and in the larger interest of public/aircraft safety. The averment of the petitioner that the respondent has erred in limiting the construction to 932 meters AMSL is denied. The respondent has arrived at the said figure after a conclusive examination of the site elevation at HAL Airport, runway strip and Approach Funnel, Inner Horizontal Surface of the HAL Aerodrome. Hence, the action of the 1st respondent cannot be said 52 to be arbitrary to warrant inference under the extraordinary jurisdiction vested with this Court under Article 226 of the Constitution of India.
26. I have heard the learned Counsel for the parties to the lis.
III Arguments advanced by the learned Counsel for the petitioner
27. Sri Udaya Holla, learned Senior Counsel appearing for the petitioner has contended that the impugned order passed by the 1st respondent, Annexure-AQ canceling the 'No Objection Certificate' for height clearance is erroneous and contrary to the material on record. He would further contend that the provisions of Section 9-A of the Aircrafts Act, 1934 provides height of the building around Airports and the Central Government is empowered to issue notification, if necessary and expedient so to do for the safety of aircraft operations, it may, by notification in the Official 53 Gazette. He would further contend that the NOC dated 28.10.2011 clearly stipulates that, if however, at any stage, it is established that the said data as tendered by the said applicant is actually different from one tendered and which could adversely affect aircraft operations, the structure of part(s) thereof in respect of which the NOC is being issued will have to be demolished at his own costs as may be directed by the HAL Airport, Bangalore. The applicant(s) is/are therefore advised in his/their own interest to verify the elevation and other data furnished for the site, before embarking on the proposed construction.
28. The learned Senior Counsel would further contend that in view of the Notification dated 14.1.2010 bearing No. S.O.84(E) issued by the Ministry of Civil Aviation as per Annexure-B stipulates that no building or structure shall be constructed or erected and no tree shall be planted on any land within the limits specified 54 in Annexure- I and II from Civil and Defence Aerodromes and Aeronautical communication stations listed in Annexure-IIIA, IIIB, IIIC, IIID and IIIE without obtaining 'No Objection Certificate'. Clause-2(b) of the said notification stipulates that for Defence aerodromes, defence authorities shall be responsible for issuing No Objection Certificate in accordance with the notification and subject to any other restriction or condition which such authorities deemed fit for issuing the 'No Objection Certificate'. Clause-3 of the said notification stipulates that no building or structure higher than the height specified in Annexure-I and II shall be constructed or erected and no tree which is likely to grow or ordinarily grows higher than the height specified in the said Annexure I and II shall be planted on any land within a radius of twenty kilometers from the aerodrome reference point. He would further contend that Annexure-II of the said notification dated 14.1.2010, the height or permissible elevations shall be calculated 55 based upon the Annex 14 obstacle limitation surfaces, the radio navigation aids based on Annex 10 and the operational requirements for minimum altitudes of various segments of published instrument approach procedures based on Document 8168, VOL II of International Civil Aviation Organisation (ICAO).
29. The learned Senior Counsel would further contend that in the very notification, Clause 1.4 specifies the Inner Horizontal Surface. Clause 1.4.1 Dimensions and permissible heights of Inner Horizontal Surface are given in the table as under:
RUNWAY INSTRUMENT NON-INSTRUMENT Code Length Radius Height Radius Height No. (Meter) (Meter) (Meter) (Meter) (Meter) 1 <800 3500* 45 2000* 45 2 800<1200 3500* 45 2500* 45 3 1200<1800 4000** 45 4000** 45 4 1800 and 4000** 45 4000** 45 above wherein it has been mentioned that the radius shall be measure from the Aerodrome Reference Point and the 56 Radius shall be measured from the extremities of the Runway.
30. The learned Senior Counsel would further contend that under Clause 4 of the very notification dated 14.1.2010 prescribes the Shielding Benefit, wherein the shielding principles are employed with respect to natural terrain/duly authorized existing obstacles which penetrate above the obstacle limitation surfaces described and as contained in this document, subject to aeronautical study, if considered necessary by the competent authority. It is further contended that Clause-5 of the said notification prescribes Conduct of Aeronautical Study providing the guidelines which are as follows:
(i) The request for aeronautical study shall be processed by Airports Authority of India on case to case basis;57
(ii) Aeronautical study shall be undertaken by a predetermined and approved agency and as per guidelines;
(iii) Recommendations of aeronautical study after approval of the competent authority shall be considered by Airports Authority of India for issuing No Objection Certificate for the height sought.
31. The learned Senior Counsel would further contend that in the very notification as per Clauses 6.1.1.- Annex-14 Criteria -
(i) The site of the proposed buildings/installations shall be marked on the zoning map of the aerodrome, prepared by the aerodrome operator, where Annex 14 surfaces have been drawn;
(ii) If the location is within the approach/take off surface, the permissible applicable heights in the approach/take off climb surface, transitional surface, Inner Horizontal Surface/conical surface shall be calculated;
58
(iii) If the site is located outside the approach/take off climb surface, the height shall be determined as per the location applicable to the relevant surface (transitional, Inner Horiztontal Surface, Conical or Outer Horizontal Surface). The learned Senior Counsel has drawn the attention of the Court to Clause 6.3 of the very notification prescribing that the lowest height determined based on Annex 14, Annex 10 and Procedure for Air Navigation Service Operations (PANS OPS) shall be the permissible height of the proposed building/installations for which No Objection Certificate is to be issued. The learned Senior Counsel drawing attention of the Court to Annexure-IIIC of the very notification providing List of Defence Aerodromes wherein at Serial No.5 Bengaluru (HAL) Airport is mentioned as follows:
S. COORD.LAT/LO ELEV.(IN RUNWAY DIMENSION OWNER Nos.
59
AIRPORT STATE NG(IN MTRS.) ORIENTA
DEGREES TION
5 BENGALURU KARNATAKA 125703N 888 09/27 3306x45 HAL
0773957E
32. The learned Senior Counsel further
contended that paragraphs 2 and 4 of the letter dated 28.3.2013 written by the Deputy General Manager (Aerodrome) to M/s Chalet Hotels Limited, reads as under:
"2. No surveyor or certifier is authorized by HAL- NOC Committee to survey or to certify the location and elevation of a site. HAL insists only on "Location and Elevation Certificate"
from the local municipal authority (i.e., BBMP in your case). HAL-NOC-
Committee has no role in surveying and verifying the elevation of a site. This practice is being followed by Airports Authority of India (AAI) and the same is adopted by HAL."
60
"4. In para 3 of the NOC issued, it is clearly mentioned that the clearance for 932 M AMSL (870M (Site Elevation)+ 62M (Height of the structure)) was issued based on the information provided by you. You were also advised in your own interest, to verify the site elevation and other data furnished for the site by you, before embarking on the proposed construction, to avoid any possible violation of the permissible elevation of 932M in the future."
The learned Senior Counsel further contended that the Airport Authority of India has granted NOC to various projects and cancellation of NOC for height clearance as per Annexure-AQ dated 16.8.2013. During the random checkup, the site elevations were compared with that of given in the Survey of India (SOI) maps and it was observed that the declared elevation of 870 M AMSL for the above mentioned site varies significantly i.e., Actual 61 elevation could be as high as 890 M AMSL. Various letters were referred for advising which read as under:
(a) Ref.No.ASC/DGM(AO)/131/697/2012 dated 15/9/2012.
(b) Ref.No.ASC/DGM(AO)/131/123/2013 dated 19/2/2013.
(c) Ref.No.ASC/DGM(AO)/131/241/2013 dated 12/4/2013.
(d) Ref.No.ASC/DGM(AO)/131/287/2013 dated 27/4/2013.
(e) Ref.No.ASC/DGM(AO)/131/340/2013 dated 20/5/2013.
(f) Ref.No.ASC/DGM(AO)/131/420/2013 dated 21/6/2013.
(g) Ref.No.ASC/DGM(AO)/131/433/2013 dated 2/7/2013.
(h) Ref.No.ASC/DGM(AO)/131/494/2013 dated 27/7/2013.
for getting resurvey done. However, in the said letter, it was observed that inspite of several reminders; the petitioner had failed to carry out resurvey done. It was also noted that vide letter No.KSRSAC/48/dgps(PB)/(12)/2012 dated 29th July, 62 2013 addressed to the petitioner, Karnataka State Remote Sensing Application Centre (KSRSAC) had offered to carry out the survey of the site on 5th August, 2013, and the opportunity of which was also not utilized by the petitioner in getting the resurvey done. Inspite of this, one more opportunity was given to get resurvey done within 16th August 2013. Consequently, NOC issued was cancelled as per Annexure-AQ. He further contend that before cancellation of NOC, the respondents ought to have considered the provisions of Section 9-A of the Act and Rules 3 and 6 of the Aircraft (Demolition of Obstructions Caused by Buildings and Trees Etc.) Rules, 1994 (for short, 'the Rules'). Therefore, an NOC for height clearance of 62 meters Above Ground Level (AGL)/932M Above Mean Sea Level (AMSL) was issued by the HAL, vide letter No.ASC/CM(AO)/181/HAL-BG-238/2011 dated 28th October 2011, for construction of residential building at the site bearing Sy.Nos.21, 22, 42, 52 and 1B, located 63 at Koramangala Industrial Layout, Jakkasandra village, BBMP Ward No.68, Bangalore, based on the site elevation of 870M AMSL declared by it in the NOC application.
33. The learned Senior Counsel would further contend that International Standards and Recommended Practices, Annex-14 to the Convention on International Civil Aviation Aerodromes, Clause 4.2 - Obstacle limitation requirements prescribes the requirements for obstacle limitation surfaces specified on the basis of the intended use of a runway i.e., take- off or landing and type of approach, and are intended to be applied when such use is made of the runway. In cases where operations are conducted to or from both directions of a runway, then the function of certain surfaces may be nullified because of more stringent requirements of another lower surface. Clauses 4.2.4 prescribes Recommendation where New objects or 64 extensions of existing objects should not be permitted above the conical surface or inner horizontal surface except when, in the opinion of the appropriate authority, the object would be shielded by an existing immovable object, or after aeronautical study, it is determined that the object would not adversely affect the safety or significantly affect the regularity of operations of Aeroplanes.
34. Under Clauses 4.2.5 prescribes Recommendation wherein existing objects above any of the surfaces required by 4.2.1 should as far as practicable be removed except when, in the opinion of the appropriate authority, the object is shielded by an existing immovable object, or after aeronautical study, it is determined that the object would not adversely affect the safety or significantly affect the regularity of operations of aeroplanes.
65There is also a Note that because of transverse or longitudinal slopes on a strip, in certain cases the inner edge or portions of the inner edge of the approach surface may be below the corresponding elevation of the strip. It is not intended that the strip be graded to conform with the inner edge of the approach surface, nor is it intended that terrain or objects which are above the approach surface beyond the end of the strip, but below the level of the strip, be removed unless it is considered they may endanger aeroplanes. Clause 4.2.6 prescribes Recommendation in considering proposed construction, account should be taken of the possible future development of an instrument runway and consequent requirement for more stringent obstacle limitation surfaces.
35. Learned Senior Counsel further contended that Table 4.1 provides Dimensions and Slopes of Obstacle Limitation Surfaces-Approach Runways, 66 prescribing Inner Horizontal height as 45 m and radius as 4000 m. He further contended that the Air Traffic Management Circular No.4 of 2010 (ATMC) is issued by the Airports Authority of India and - The procedure for issuance of NOC under the said Circular is as under:
Clause 4.2 prescribes that the applicant shall submit the application for NOC on prescribed form (Appendix-
1). The applicant will provide the exact location of the proposed construction on the grid map/zoning map of the concerned aerodrome along with the coordinates in WGS-84 system. The applicant shall be responsible for the correctness and integrity of site data furnished in the application. The applicant shall also submit an undertaking to the effect that the data furnished in the application is correct in all respect and in case, at any stage, the data provided by the applicant is found to be incorrect, the NOC issued shall automatically stands cancelled. The application should be accompanied by 67 the site elevation of the proposed construction duly authenticated by the Local Authorities.
Clause 4.11 prescribes that RED/APD may constitute a Committee at Regional/ Station Level for verification of proposed site.
Clause 4.12 prescribes that the Regional/Station Level NOC Committee shall be competent to issue NOC for permissible heights, in all cases, both within the applicable Obstacles Limitation Surfaces (OLS) as well as beyond the limits of OLS.
36. The learned Senior Counsel further contended that in paragraph 23 of the reply to the rejoinder statement of the petitioner by respondent i.e., M/s Hindustan Aeronautics Limited, in W.P.No.37571/ 2013, the respondent has stated that, "It is true that elevation certificates of M/s Precision Surveys have been accepted by the respondent in the past, however, there was no discrepancy or difference in the data 68 furnished therein." He further contended that the Precision Surveys (I) Pvt. Ltd., is on par with the petitioner. The same was accepted by respondents and same Precision Surveys done in respect of petitioner is not accepted by the respondents.
37. The learned Senior Counsel further contended that in Writ Petition No.11486/2008 an affidavit is filed by the 2nd respondent - Mr. Rajender Sharma, Head, Airport Service Centre, HAL, Bangalore, and paragraphs 2, 7, 9 and 10 of the affidavit read thus:
"2. I state that the petitioner preferred the above said writ petition challenging the agreement entered into between BIA and the Union of India in the year 2008 itself. The second respondent has also filed statement of objection dated 10th Dec 2008. The second respondent is a Public Sector Undertaking under the Ministry of Defence, Government of India. The Company is engaged in 69 Design, Manufacture and Maintenance of Aerospace, Defence Equipments and was operating HAL Airport for Commercial (Passenger/ Cargo) as well as for Defence purposes prior to 23.5.2008. The HAL Airport was closed consequent upon Notification dated 16.5.2008. However the use of HAL Airport continued to operate Defence and General Aviation purposes.
7. I state it is pertinent to mention here that separation standards prescribed in ICAO (International Civil Aviation Organisation) documents and DGCA Guidelines are strictly adhered by HAL ATC for both civil and military aircraft movement at all times. The safety measures for all the flights whether it is Defence or Civil Flights is one and the same and the facilities which are extended cannot be distinguished between Civil Flights as well as Defence Flights.70
9. I state that before closure of the Airport dated 23.5.2008 the revenue earning was about Rs.250 crores during the year 2007-2008. Though the Domestic Air Service has been abandoned the said airport is intact with all its infrastructure and paraphernalia and the HAL Airport is ready and fit condition if the domestic airlines is ready to operate from the HAL Airport. Once if the domestic airlines are allowed to operate from HAL Airport we are ready to support such operations. In such an event the present HAL Airport is in a position to accommodate domestic airlines.
10. I state that if a chance is proved or an opportunity is extended to HAL we are ready to undertake and provide all facilities and infrastructure for the purpose of running the Domestic/International flights."71
38. The learned Senior Counsel further contended that the opinion expressed by the experts, Mr. Satendra Singh, Senior Independent Expert, Former DGCA, and Mr. V. Somasundaram, Senior Independent Expert, Former Member (ANS), AAI, is reproduced as under:
"3. The Aeronautical Study conducted by AAI pursuant to the direction of the Hon'ble High Court for the structure constructed and to be constructed by CHPL, is in accordance with the notified parameters for HAL airport and the notifications issued under Section 9A of the Aircraft Act, 1934 [i.e., S.O.84(E) dated 14.1.2010 and G.S.R.751 dated 30.9.2015 which has superseded S.O.84(E)].
The Aeronautical Study conducted by AAI has concluded that the structure height of 954.41 mtrs. AMSL is 72 permissible and would not adversely affect aircraft operations.
In our opinion, the objections
raised by HAL would not affect the
outcome of the Aeronautical Study
Report of AAI."
He further contended that in the Order dated
05.11.2015 passed by this Court in the present writ petition i.e., WP No. 37571/2013, it has been observed that "in order to elucidate and amplify the direction at paragraph 45 of the order dated 31.07.2014, it is appropriate to modify/ clarify as follows:
"That the aeronautical study of Bengaluru (HAL) Aerodrome is for the purpose of ascertaining as to whether or not the building constructed or to be constructed to the height of 62 meters above the ground level of property in question in accordance with notified parameters and Annexure-B to the 73 petition for HAL Airport would affect (safety) of the Airport operations."
39. The learned Senior Counsel further contended that the procedure for issue of NOC for height clearance by HAL is that all the cases will be decided in accordance with the provisions of Govt. of India Gazette and additional restrictions imposed by HAL authorities. At present, there are three additional restrictions/conditions imposed by HAL to facilitate special test flying at low level. This is a deviation from S.O.84(E):
"(i) Maximum permissible elevation within a radius of 20KM from Aerodrome Reference Point (ARP) of HAL Airport:
"1037 AMSL (150M above
Aerodrome Elevation of HAL
Airport 887M AMSL) instead of
1187 M AMSL (300M above
74
Aerodrom Elevation of HAL
Airport as per S.O.84(E))
(ii) Criteria for the structures which
do not constitute "Large Objects"
mentioned in para 2.5 and 2.6 of
S.O.84(E) are not to be implemented.
(iii) Aeronautical Study for permitting more height is not applicable."
He would further contend that through the letter dated 23.11.2013, the Deputy General Manager (Aerodrome), HAL, sought for the information as under:
a) Revised and detailed procedure for issue of NOC for height clearance was issued on 26th September 2013.
b) The procedure is effective from 26th September 2013.
c) Objections from general public were neither required nor invited.75
d) Para 2(b) of Govt. of India Gazette Notification S.O. 84(B) dated 14th January 2010.
40. The learned Senior Counsel for the petitioner further contended that on 12.03.2015, HAL sought for information under RTI and invited the attention of the Court to eAIP INDIA, VOBG AD 2.10 Aerodrome Obstacles which gives details of the buildings and trees which are obstacle to HAL, but they have not notified the petitioner's building as obstacle. He would further contend that the NOC granted by the Appellate Committee to various authorities from 30.7.2015 to 6.1.2016 at Sl.No.31, the project is Spaceage Consultants, Dadar, Mumbai; Distance from nearby Airport is 3.8 Kms; height granted is 215.05 and the remark is, as conducted and the requested height is permitted. The Minutes of the meeting of the Appellate Committee for height clearance held on 4.12.2015 states that, as per NOCAS, the proposed site lies in 76 Inner Horizontal Surface at a distance of 3155 meters from runway 27 of Santa Cruz Airport. He further contended that the said Committee on 24.6.2015 considered the Aeronautical Study report and the maximum permissible height as per Aeronautical Study report, taking into consideration the CNS & PANS-OPS Criteria is 606.50 m AMSL. When the Committee asked to recalculate the maximum allowable AGA OLS penetration through Aeronautical Study by using formula i.e., PE=Aerodrome Elevation +45+{1.27(x-
465)\100} where 'x' is the distance of nearest runway extremity, the maximum allowable penetration of AGA OLS using the above formula comes to 599.20 m AMSL.
41. The learned Senior Counsel for the petitioner would further contend that M/s. S.B. Developers, Mumbai also was given NOC at a distance of 56.90 mts., AMSL vide AAI Letter dated 15.4.2014. The applicant thereafter applied for revised height of 81 m 77 AMSL vide letter dated 7.6.2014 and NOC was given and the Aeronautical Study was conducted for 81mts. AMSL. He further contended that the Appellate Committee Decision for permissible height (81m AMSL) as contained in the report was submitted to the Chairman of the Appellate Committee consisting of three Members, who had signed the decision for permissible height as contained in the report to be communicated to the applicant. The learned Senior Counsel further contended that a Notification was issued by the Ministry of Civil Aviation dated 30th September, 2015 bearing No.G.S.R.751(E) framing certain rules in exercise of Section 9A of the Act and in supersession of the Ministry of Civil Aviation Notification No.S.O.84(E) dated 14th January, 2010. It was further contended that under Rule 133A Sub-rule (2) of the Aircraft Rules, 1937 prescribes that the Civil Aviation Requirements under Sub-rule(1) shall be issued after placing the draft on the website of the 78 Directorate General of Civil Aviation for a period of thirty days inviting objections and suggestion from all persons likely to be affected thereby:
(1) The Director General under Section 133A of the Aircraft Rules 1937 may through Notices to Airmen (NOTAMS), Aeronautical Information Publication, Aeronautical Information Circulars (AICs), Notice to Aircraft Owners and Maintenance Engineers and Publication entitled (Civil Aviation 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;
(2) CIVIL AVIATION REQUIREMENTS SECTION 9 - AIR SPACE AND AIR TRAFFIC MANAGEMENT SERIES 'I' PART I ISSUE II, 8TH JANUARY 2010, 79 covers all aspects of aeronautical information services which include NOTAM.
(3) Definition of NOTAM - A classified notice to airmen is distributed by means of telecommunication containing information concerning the establishment, condition or change in any aeronautical facility, service, procedure or hazard, the timely knowledge of which is essential to personnel concerned with flight operations;
(4) The responsibility of issuing NOTAM is with Airports Authority of India;
(5) The NOTAMs for HAL Airports
(VOBG) as seen on monthly NOTAM
Summary document for January
2016 found on AAI website shows 4
NOTAMs and none of them mention
anything about the impugned
construction being a hazard to
safety."
80
The NOTAM valid on 01.01.2016 includes A 1792/14, VOBG stipulates Avoid ARR/DEP 0015 min prior to and 0045 min after sunset due BAT activity over the Airport.
A0305/15 states Arrester Barrier Instl at both ends of RWY LCA RWY09. He would further contend that the guidelines for Aeronautical study for the purpose of evaluating the existing or the proposed structures penetrating the obstacle limitation surfaces, reads as under:
"3. The prime objective of the study is to ensure:-
3.1 The safety of air navigation, efficient utilization of airspace and airport by the aircraft, based on the instrument/visual flight procedures in operation and planned instrument flight procedures during normal aircraft operations and;81
3.2 To protect the service volume of CNS facilities and their performance from either electromagnetic interference or due to physical hindrance/restriction."
42. The learned Senior Counsel for the petitioner invited attention of the Court to the Scope of Aeronautical study which reads as under:
"4.1 An existing or proposed structure, penetrating or expected to penetrate the obstacle limitation surfaces as detailed in ICAO Annex 14, resulting in deviation from the Standards, is presumed to be a hazard to air navigation unless the Aeronautical study determines that safety and regularity of aircraft operations is not adversely affected during the normal aircraft operations.
4.2 An aeronautical study must identify the effect of the proposed structure:82
4.2.1 On existing and the proposed instrument flight procedures, PBN procedures, departure and arrival procedures, and the minimum flight altitudes of the air-routes, OCA, MSA and Radar Vectoring Altitudes, during normal aircraft operations.
4.2.2. Regarding physical, electromagnetic, or line-of-sight interference on the existing and the proposed, communications, navigation and surveillance (CNS) facilities.
4.2.3. Whether marking and/or lighting of the structure is necessary.
4.3. However, safety impact on the
aircraft operations in degraded
operational performance mode is not analysed."
43. The learned Senior Counsel for the petitioner further contended that the Regional/Station Level NOC Committee shall be competent to issue NOC for 83 permissible heights, in all cases, both within the applicable Obstacles Limitation Surfaces (OLS) as well as beyond the limits of OLS. He also invited the attention of the Court to Clause-5 of the Schedule-II of the Notification issued by the Ministry of Civil Aviation (Height Restrictions for Safeguarding of Aircraft Operations) Rules, 2015. Relevant portion of Clause 5 reads as under:
"Conduct of Aeronautical Study and CNS Simulation Study 5.1 - The Aeronautical Study, as referred to in the Civil Aviation Requirements Section-4, Series 'B', Part I on Aerodrome Design and Operations and ICAO Annex 14, may be conducted to determine that the existing object or the proposed new object would not adversely affect the safety or significantly affect the regularity of operations of aeroplanes in pursuance of the ICAO provisions as given below:84
New objects or extensions of existing objects should not be permitted above the conical surface and the inner horizontal surface except when, in the opinion of the appropriate authority, after aeronautical study it is determined that the object would not adversely affect the safety or significantly affect the regularity of operations of aeroplanes.
Note 2: Existing objects above an approach surface, a transitional
surface, the conical surface and inner horizontal surface should as far as practicable be removed except when, in the opinion of the appropriate authority, after aeronautical study it is determined that the object would not adversely affect the safety or significantly affect the regularity of operations of aeroplanes.
5.1.1 The request for aeronautical study shall be considered by the Member (Air 85 Navigation Services), Airports Authority of India, on case to case basis.
5.1.2 Aeronautical Study shall not be carried out in Approach and Transition surfaces.
5.1.3 Aeronautical Study, as per the established guidelines, shall be carried out by AAI, ICAO or any other agency, approved for the purpose by Ministry of Civil Aviation.
5.1.4 Based on the Aeronautical Study report, including a revised height clearance if necessary, shall be communicated to the applicant by AAI.
5.1.5 Guidelines are available at NOCAS at www.aai.aero."
44. Learned Senior Counsel for the petitioner further contended that in pursuance of the Order dated 5.11.2015 passed by this Court in the present writ petition, the Airports Authority of India has submitted 86 the Aeronautical Study Report in December-2015. At Clause 1.12 of the report, it is stated that Site Elevation Certificate issued by Karnataka State Remote Sensing Applications Centre has reported site elevation of 892.41 meters. He further contended that as per Clause 1.3 of Aeronautical Study Report , the AAI Team comprising of three officers viz., Shri Pan Singh, Sri Rajkumar and Shri L. Mohanty visited the site on 30th December 2015 to verify details of the existing structure submitted by the party.
The learned Senior Counsel also invited the attention of the Court to Clauses 2, 3.4, 5, 6.2 and 7 of the Aeronautical Study Report which read as under:
"2. Aeronautical Study for the existing structure is conducted as per the guidelines approved by the Appellate Committee in its meeting held on 11th July 2014 and 26th March 2015 to ensure that:
87
2.1.1 Safety, Efficiency and Regularity of Flight Operations are maintained during normal aircraft operations.
2.1.2 Protection surfaces of existing and proposed instrument Approach procedures are not infringed.
2.1.3 Aerodrome operating minima of instrument approach procedures are safeguarded.
2.1.4 Signal-in space & performances of existing and the proposal CNS facilities are not affected.
2.2 Guidance Material 2.2.1 ICAO Criteria
i) Annex 14, Chapter 4(Obstacle Limitation Surfaces)
ii) Procedure for Air Navigation Services(DOC8168), VOL II
iii) Airport Services Manual (Part IV-
Visual Aids) 88
iv) Airport Services Manual (Part VI-
Control of Obstacles)
v) ICAO DOC 9774 Aerodrome
Certification
2.2.2 National Regulations
i) DGCA India CAR SECTION-4
SERIES 'B', PART I on
Aerodrome Design and
Operations,
ii) Govt. of India notification GSR 751(E) 3.4 For non-precision and circling procedures, safety is ensured through the application Minimum Obstacle Clearance (MOC) margin above the obstacles. However, sometimes, it may result in the increase of OCA/H and thus, increasing the aerodrome operating minima (i.e. minimum visibility to land) and adversely affecting the regularity of aircraft operations. Therefore, it shall be ensured that the existing construction 89 would not raise the OCA/H of any procedure to maintain the efficiency and regularity.
5. Process of conducting of aeronautical study 5.1 The same methodology, adopted for the aeronautical study of the earlier cases of Mumbai, has been adopted for this project also.
5.2 The existing structure has been analyzed with reference to
a) Obstacle Limitation Surface criteria(Para 6)
b) PANS-OPS criteria(Para 7 & 8)
c) CNS criteria (PARA 9) Limitation of Study: Safety impact, of allowing the OLS penetration on the aircraft operations in degraded performance mode, such as one engine 90 failure during takeoff or landing, is not analyzed as there was no laid down procedure for the same.
7. PAN-OPS Safety and Regularity Analysis 7.1 CHQ Reference No.AAI/20012/171/14 ARI-
NOC(CHALET Hotel PVT.LTD,BANGALORE) i) Coordinates : (12 55 32.743.077 37 48.999E) ii) Location : Location from RWY THRESHOLD RWY X-distance(M) Y-distance(M) 09 +2785 2312 27 -6113 2312 Location from VOR RWY FAT X-distance(M) Y-distance(M) 09 089 +5656 2312 27 262 -5895 1595 iii) Requested Top Elevation :954.41M(3131.22 feet) AMSL 91
Ultimately, the three members of the AAI Team has come to the following conclusion in the report :
9.Conclusions:
a) The existing structure, for requested top elevation 954.41mtr AMSL, penetrates the Inner Horizontal surface of Bangalore airport by margin of 21.23 M which exceeds the permissible height of 45M by 47.17%.
b) The desired height of 954.41m AMSL is within the maximum allowable penetration of OLS as per the Aeronautical Study guidelines.
c) The Safety impact of the existing structure due to the degraded aircraft performance operations is not in the scope of this study.
c) The existing structure of 954.41m AMSL will not affect adversely the safety and regularity of aircraft from PANS-OPS criteria.92
d) The existing structure of 954.41m AMSL will not adversely affect the performance of the CNS equipment.
f) Airport Operator should ensure that the applicant/owner/builder carry out marking and lighting of the structure as per the DGCA CAR and the obstacle is published.
45. The learned Senior Counsel for the petitioner further contended that the Aeronautical Study Report was submitted to Star Global Aero Solutions Limited, New Delhi and after study, in its comments Star Global Aero Solutions Limited has observed at paragraphs-7, 8 and 9 as under:
"7. Re: HAL's Statement in 1st part of Paragraph 4(iii) of its Objections:
...that the study conducted by AAI is incomplete because it has not undertaken the study of the risk analysis through degraded operational 93 performance especially when, admittedly, HAL Bengaluru Airport is a unique Defence Airport carrying out unique operations as stipulated in para- 5 of the Statement of Objections and the objections to I.A.No.1 of 2015, viz., "Further, HAL Aerodrome supports test flying and experimental flying pertaining to various Government Agencies like Aeronautical Development Agency; Aircraft & systems Testing Establishment of IAF National Aerospace Laboratories, Aeronautical Developmental Establishment, Centre for Air Borne Systems, etc."
SASL Comments
(a) AAI Report on page 7 states " there is no laid down procedure for aircraft operation in degraded performance mode."
All regulations for permissible height assume that aircraft operates at normal performance. All parameters for 94 calculating the permissible height, including OLS (Which is 45 mtrs. in the 4km-IHS), or shielding benefit, or aeronautical study, are and can be valid for normal operations only. The guidelines for aeronautical study clarify this aspect repetitively, as demonstrated on a plain reading of The GUIDELINES FOR AERONAUTICAL STUDY issued and published by AAI on its website, which inter alia provide as follows:-
1) The aeronautical study is for the purpose of Evaluating the Existing or the Proposed Structures penetrating the Obstacle Limitation Surfaces (i.e., for higher heights above the OLS.).
2) The PRIME OBJECTIVE OF THE STUDY IS TO ENSURE the safety of air navigation, efficient utilization of airspace and airport by the aircraft, based on the instrument/visual flight procedures in operation and planned 95 instrument flight procedures during normal aircraft operations;
3) The SCOPE OF AERONAUTICAL STUDY is to verify whether an existing or proposed structure,
penetrating or expected to penetrate the obstacle limitation surfaces as detailed in ICAO Annex 14, resulting in deviation from the Standards, is presumed to be a hazard to air navigation unless the Aeronautical Study determines that safety and regularity of aircraft operations is not adversely affected during the normal aircraft operations.
4) An Aeronautical study must identify the effects of the proposed structure:
i) On the existing and the
proposed instrument flight
procedures, PBN procedures,
departure & arrival
procedures, and the minimum
flight altitudes of the air-
96
routes, OCA, MSA and Radar
Vectoring Altitudes, during
normal aircraft operations.
ii) Regarding physical,
electromagnetic, or line-of-
sight interference on the
existing and the proposed,
Communications, Navigation
and Surveillance (CNS)
facilities.
iii) Whether marking and/ or
lighting of the structure is
necessary.
5) However, Safety impact on the
aircraft operations in degraded
operational performance mode is not analysed.
6 c) It may be stated that even in the case of Mumbai Airport which would be operating around 800 flights per day and where structures above the OLD are permitted on the basis of Aeronautical Study.
97
8. Re. HAL's Statement in 2nd part of paragraph 4(iii) of its Objections.
HAL Airport is the only Airport in the Country where activities pertaining to design, development and test flying of various types of aircrafts are undertaken by/on behalf of Indian Airforce, Indian Army and Indian Navy. Admittedly AAI has not undertaken the study keeping in view the aforesaid typical activities which are unique to the airport in question and hence the Report is not worthy of acceptance as it is potentially dangerous to allow the buildings in question to stand at the present level of 954.41M instead of the maximum stipulated level of 932M AMSL. Permitting such a height of 954.41M would, thus, 98 not be in the public/national interest as it would have a direct impact on safety of aircraft operations and safety of general public at large who reside in and around the Airport;
9. Re. HAL's Statement in paragraph 4(iv) of its Objections:
4.(iv) that the AAI has failed to take into consideration the notified eAIP parameters of HAL Aerodrome which clearly stipulates that HAL Airspace is a 'restricted airspace" involved in the activity of test flying. The report does not refer to this notified parameter nor has a study been conducted by taking this peculiar aspect into consideration.99
It is further submitted that the Star Global Aero Solutions Private Limited has come to the following conclusion:
"31. Conclusion:
(a) The Aeronautical Study conducted by AAI pursuant to the direction of the Hon'ble High Court for the structure constructed and to be constructed by CHPL, is as per the notified parameters for HAL airport and the Notifications issued under Section 9A of the Aircraft Act, 1934 [i.e.S.O.84(E) dated 14.1.2010, and G.S.R.751 dated 30.9.2015 which has superseded S.O.84(E)].
(b) The Aeronautical Study conducted by AAI has concluded that the structure height of 954.41 mtrs AMSL is permissible, and would not adversely affect aircraft operations.
(c) In our opinion, the Objections raised by HAL would not affect the outcome of the Aeronautical Study Report of AAI."100
46. The learned Senior Counsel for the petitioner further contended that Section 9 of new Notification provides that a panel of Chartered Engineers and Surveyors may be assigned by Airport Authority to carry out physical verification of details of site elevation and coordinates as submitted by the applicant (This shows that HAL ought to have verified details submitted by the Precision Surveyors). He further contended that there is no exception carved out for defence aerodromes, that these provisions will not apply to defence aerodromes, or that Aeronautical Study is prohibited for defence aerodromes. The only exception carved out in this new notification for defence aerodromes is to limit maximum permissible height in outer-horizontal surface (upto 15 kilometers) to 150 meters and this would not apply in the present case, since it is in respect of inner- horizontal-surface of 4 kilometers. There is also no exception carved out for defence aerodromes, to limit maximum permissible height to 45 meters in inner- 101 horizontal-surface. He further contended that if the contention of HAL that 45 Meters is the maximum permissible height in inner-horizontal-surface is accepted and there can be no higher building if found safe by aeronautical study, then the following would be rendered otiose/illegal:
1) S.9-A of the Aircraft Act
2) International Standards and Recommended Practices of ICAO
3) Notification S.O. 1589(E)
4) Notification S.O. 84(E)
5) Present GSR 751 issued under Sec.9A in supersession of SO84(E)
6) Aircraft Rule 33-A
7) CAR Series B Part I
8) ATC Management Circulars
9) Guidelines for Aeronautical-study
10) All orders of Appellate-Committee of AAI constituted by Ministry of Civil Aviation for height of above 45M.102
If it is now held or interpreted as desired by HAL, that 45M is maximum height in the IHS, and anything above is not permissible even if found safe in aeronautical study, hundreds of structures will have to be demolished.
47. The learned Senior Counsel for the petitioner further contended that HAL notified parameters are on the website of HAL, accessible to any public. HAL Aerodrome obstacles are also notified at para 2.10 where it notifies (un-named) Building, Jayanagar Complex, Public Utility Building etc., as obstacles. Jayanagar Complex building height indicated is 3209 FT. A dot with 3209 FT is towards the southwest of the runway and virtually lying in the trajectory. The public utility building is 3291 FT and it is on the northeast of the runway and is indicated by the dot. Admittedly, the building of the petitioner has not been notified as HAL aerodrome obstacle.
103
48. Sri Udaya Holla, learned Senior for the petitioner contended that this Court while disposing off W.P.No.15688/2016 dated 06.06.2016 at paragraphs 3 and 4 held as under:
"3. Mr. Pradeep S. sawkar, learned advocate, appears and files the statement of objections on behalf of the respondent. It is submitted that all possible steps have been taken and the apprehension of the writ petitioner is imaginary.
4. We record the submission of Mr. Sawkar that the HAL has undertaken all possible steps as required under Section 9-A of the Aircraft Act, 1934, and there is no apprehension of danger to the population residing in and around HAL airport."
He further contended that, at paragraph-5 of the statement of objections filed by the respondent-HAL in the present writ petition it is stated as under: 104
"5. The primary purpose of issuing NOCs to high rise buildings is to restrict obstacles within the imaginary limiting surfaces called Obstacle Limitation Surfaces (OLS) and any penetration of the limiting surfaces endangers safety.
The Gazette Notification dated 14.01.2010 has been developed and promulgated keeping in view the
operation at Civil Aerodromes. At para 2(b) of the Gazette Notification, it is categorically stated that for Defence Aerodromes Defence Authorities shall be responsible for issuing NOCs in accordance with the Notification and subject to any other restrictions and conditions which such authorities deem fit. Under the circumstances imposition of additional restrictions or conditions are necessary due to the nature of operations and traffic characteristics which are as under:
(a) Operation of Single Engine Aircrafts:105
(b) Single occupancy Cockpit and consequent High Cockpit workload;
(c) Very high rate of descent, Climb and Turn;
(d) Higher sped of operation including higher landing speed;
(e) formation flying;
(f) Low endurance flying;
(g) Low level flying requirement;
(h) Tactical combat training (sudden variations in altitude and direction);
(i) Large number of Aircrafts launched and recovered within short durations;
49. Sri Udaya Holla, learned Senior Counsel further contended that, it is not the case of the HAL that the petitioner has violated any parameters fixed by the HAL. In paragraph 5 of the objections filed to 106 I.A.No.2/2014 by the 1st respondent for modification of the order dated 31.07.2004, it is stated as under:
"The primary object of fixing the maximum height under Section 9-A of the Aircrafts Act, 1934, is to secure safety of Aircraft operations in and around the Aerodrome. Thus, the only way in which it can be ascertained is through Aeronautical study of Aircraft operations based on notified parameters for HAL Airport."
He further contended that the proviso to Rule 6C of the Aircraft Rules, 1937 prescribes that, "6C. xxxx xxx "Provided also that the test flight is carried out within the specified area and in accordance with the conditions stipulated by the Director-General in his behalf and prior notice of the flight is given to the officer-in-charge of the 107 aerodrome from which the flight is to be made."
Sri Udaya Holla, learned Senior Counsel further contended that under Civil/Military Cooperation in Air Traffic Management approved by the Secretary General and published under its authority by International Civil Aviation Organization, Regulation 5.2.16 reads as under:
"5.2.16 Experimental/trial aircraft:
Experimental/trial aircraft activity includes acceptance testing for new aircraft, aerodromes and systems research on military and non-military aircraft. The activities range in variety and ATM requirements; however each will most likely require temporary dedicated airspace to ensure safety."
50. Sri Udaya Holla, learned Senior Counsel further contended that the Government of India, Civil Aviation Department, at Section 2-Airworthiness, Series F Part XVIII, Issue I, of Civil Aviation Requirements, 108 dated 23.10.1992, has enumerated the construction, certification and operation of experimental/ amateur built aircraft, as under:
2. "Applicability:
Aircraft Rule 15 and 50 empowers the DGCA to issue, renew or revalidate, permit to Fly and Certificate of Airworthiness respectively. Aircraft Rule 15 further requires that all aircraft registered in India possess a current and valid certificate of Airworthiness (C of A) before it is flown unless it is flown for the purpose of flight test for issuance/renewal of C of A in the vicinity of the departing Aerodrome.
3. Scope:
This part of CAR provides
guidance/requirement concerning the
building, certification and operation of amateur built aircraft, explains how much fabrication and assembly, the builder must do for the aircraft to be eligible for amateur built certification in 109 the Experimental/amateur built category, and describes the role of the DGCA in the certification process."
Sri Udaya Holla, learned Senior Counsel, further contended that, clause 7.2.3 of the said regulation stipulates that:
"Unless otherwise authorized by the DGCA, no person may operate an aircraft that has an experimental certificate, over a densely populated or in a congested area, unless it is for the purpose of landing/take off and/or approached for landing/take off."
He further contended that paragraphs 43 to 45 of the Order dated 31.07.2014 passed in the present writ petition read as under:
"43. In the circumstances, prima-facie the re-survey of elevation of the 'land in question' by itself and nothing more, without an aeronautical study, cannot determine the maximum permissible 110 height of the building to be reckoned as 45 meters AMSL. Viewed in this perspective, declining the interim relief
(b) would be travesty of justice occasioning grave injustice to the petitioner.
44. Sri Udaya Holla, learned senior counsel for the petitioner is correct in his submission that the petitioner must either succeed or fail on the basis of the aeronautical study report, since it is essential for decision making over the final relief.
45. In the circumstances, no injustice will be caused to the first respondent if directed to request AAI to process petitioner's application to conduct an aeronautical study of the Bengaluru (HAL) Aerodrome at the cost of the petitioner, after due process, in compliance with clause-5 of Annexure II to the notification, Annexure-B. The 1st respondent is directed accordingly." 111
51. Against the said Order passed by the learned single Judge, W.A.No.2572/2014 was filed and the Division Bench of this Court, while disposing of the Appeal, at paragraphs 5, 6, 7 and 11, has held as under:
"5. The Hon'ble Single Judge, by the order impugned, directed the Airport Authority of India to process the application of the writ petitioner to conduct an aeronautical study of the Bengaluru (HAL) Aerodrome at the cost of the writ petitioner.
6. By the order impugned, no rights of the parties have been decided. The report that would be submitted before the Hon'ble Single Judge would be subject to the result of the writ petition.
7. Mr. Pradeep S. Sawkar, learned advocate, strenuously, submits that once the notification has been issued under Section 9-A of the Aircrafts Act, 112 1934, it was impermissible to issue another aeronautical study.
11. We, however, request the Hon'ble Single Judge to expedite the hearing of the writ petition as far as possible and to decide the matter uninfluenced by the observations made in the order impugned."
52. Sri Udaya Holla, learned Senior Counsel for the petitioner, further contended that in the absence of aeronautical study, it is not possible to contend that petitioner has violated the terms and conditions of the notification issued by the Central Government and this Court, by the Order dated 01.09.2016, granted interim order. He further contended that the Division Bench of the High Court of Judicature at Bombay, in the case of Yeshwanth Shenoy vs. The Union of India and others, in Public Interest Litigation No.86/2014 dated 01.09.2016, held that, 'before grating NOC from the competent authority, care should be taken to see that height is 113 properly calculated and mean sea level is fixed. If any appeal is filed to the appellate authority against the order, the authorities should not exercise its discretion, firstly, in respect of those structures which are within the funnel area, and also those structures which fall within four kilometers of the runway and approaches.
53. Sri Udaya Holla, learned Senior Counsel, further contended that, in paragraph-5 of the said judgment, it is observed by the Division Bench that, "we are informed by the learned ASG appearing on behalf of the Airport Authority of India that in fact discretion is not being exercised for the purpose of relaxing the height restrictions. We also direct the Municipal Corporation and other planning authorities to again calculate the height and ensure that height is calculated from the mean sea level and only thereafter occupation certificate may be granted. He further contended that, in the Notice to Motion (L) No.88 of 2017 in PIL 114 No.86/2014, the High Court of Judicature at Bombay, at paragraph-6, held that, "no prejudice would be caused to any party if the appellate authority is directed to process such applications which are received by it against the rejection of height increase by the Airport authority and the said appellate authority shall process the said application in accordance with Clause 5 of Schedule II of the GSR". However, the appellate authority was directed to take final decision. The said judgment of the Bombay High Court has been suppressed by the HAL. He further contended that, against the said Order passed by the Bombay High Court dated 05th and 06th April 2018, the aggrieved party filed SLP No.14948/2018 before the Hon'ble Supreme Court, which came to be dismissed on 12.10.2018.
54. Sri Udaya Holla, learned Senior counsel appearing for the petitioner brought to the notice of the 115 Court that, the order dated 23.03.2017 passed by the Division Bench of High Court of Judicature at Bombay in PIL No.86/2014, wherein at paragraphs 2,4,5,6,7,9 and 12 it is held as under:
"2. While hearing PIL No.86 of 2014, this Court was pleased to give certain directions by way of an interim arrangement, and had given general directions. In para 4 of an order dated 1st September, 2016, passed in the said PIL this Court has observed as under:
"4.....If any appeal is filed to the appellate authority against this order, the authorities should not exercise its discretion, firstly, in respect of those structures which are within the funnel area, and also those structures which fall within four kilometers of the runway and approaches."116
4. In our view, the said order was passed since at the relevant time, it was not clear as to what are the exact height restrictions which were imposed. The height restrictions have been imposed by the various authorities and the several directions have been given by the Ministry of Aviation and by the appellate authority, and as such therefore, at that stage, for a limited period the said restriction was imposed by this Court.
5. It is an admitted position that so far as the appellate authority is concerned, it has powers to consider an appeal against the rejection of application for consideration of height restrictions i.e., increase in height imposed by the Airport Authority. The statutory regulations are framed under section 9A of the Aircraft Act. The said regulations empower the appellate authority to examine the appeal filed by any person being aggrieved by the rejection of the 117 application for increase in height outside the funnel area.
6. In our view, at this stage, no prejudice would be caused to any party if the appellate authority is directed to process such applications which are received by it against the rejection of height increase by the Airport authority and the said appellate authority shall process the said application in accordance with Clause 5 of Schedule II of the GSR. However, the final decision may not be taken by the appellate authority.
7. We are of the view that there are some ambiguities, firstly, regarding the actual height restriction which is imposed outside the funnel area and in the inner horizontal surface. We are also of the view that this issue can be considered expeditiously on the next date. The Airport Authority of India has also filed a notice of motions. Few other notice of motions and review petitions 118 have also been filed. All these motions and review petitions shall be placed for further hearing on 12th April, 2017 at 12.30 p.m., so that once for all the legal provisions will be taken into consideration, and secondly, the manner and method in which the calculation of the height restriction is to be done, will also be taken into consideration.
9. Airport Authority of India shall also submit AAI study report mentioned in Ministry of Civil Aviation guidelines dated 26th March, 2015 before the next date, and if possible supply its copies to all the parties.
12. We hope and trust that all the developers and builders will file an application for increase of height if they are satisfied that such an increase is within permissible limits.
119
55. Sri Udaya Holla, learned Senior Counsel for the petitioner further contended that in the very case, i.e., PIL No.86/2014, by the Order dated 04.05.2017, it is clarified that all pending applications before the appellate authority may be processed. He further contended that the Division Bench of the High Court of Judicature at Bombay in PIL No.86/2014 by the order dated 5th & 6th April 2018, at paragraphs 15, 17,20 and 40 it is held as under:
"15. As clarified above, we are not presently expressing any opinion on these aspects highlighted and by relying on the written arguments. What we have before us and tendered on behalf of the Airport Authority of India is G.S.R. 751(E). After this PIL was filed, the Ministry of Civil Aviation has issued a Notification dated 30th September 2015 and it is duly published in the Gazette of India - Extraordinary [Part II - Section 3(i)]. This Notification notifies the Rules to be called as "Ministry of 120 Civil Aviation (Height Restrictions for Safeguarding of Aircraft Operations) Rules, 2015 ("2015 Rules" for short). These Rules are made in exercise of the powers conferred by sub-section (1) and clause (o) and clause (r) of sub- section (2) of Section 5 read with Section 9A of the Aircraft Act, 1934. Pertinently, these Rules supersede the Ministry of Civil Aviation Notification No. S.O. 84(E) dated 14th January 2010 published in the Gazette of India, Part II Section 3 sub-section (ii), except as respect things done or omitted to be done before such supersession. The objections or suggestions on the draft Standing Order were called from the stakeholders and it is claimed that they are duly considered by the Government to the extent admissible. In the public interest, the Rules are notified by seeking exemption from putting the Rules again in the public domain.121
17. The Aircraft Rules, 1937 are also in place. There are also Aircraft (Demolition of obstruction caused by buildings and trees etc.) Rules, 1994. These Rules are made in exercise of powers conferred by sub-section (2) of Section 11 of the Aircraft Act, 1934. The said Rules of 1994 now have been highlighted by the Government as also on behalf of Airport Authority of India by the learned Additional Solicitor General. It is the Notification of Ministry of Civil Aviation dated 30th September 2015 and the Rules notified thereunder which would guide the Authorities.
What we have noted is that after these Rules were brought to the notice of the parties and some of them were highlighted, it is clear that the petitioner is not entirely happy with the same. In the affidavit dated 23rd August 2016 filed by Mr. Sudhir Raheja, Chairman, Airport Authority of India, it is stated that the NOC for height clearance is given by AAI in accordance with 122 Government of India, Ministry of Civil Aviation Gazette Notification No.GSR- 751(E) dated 30th September 2015.
Thus, these Rules are now governing the field. The petitioner has raised number of issues other than legality and validity of the Rules themselves. It is in these circumstances that we are of the opinion that the present petition can be disposed of by clarifying that all contentions in relation to legality and validity of these Rules and particularly the matters concerning civil aviation safety, as raised in the PIL, are kept open and it will be for the petitioner to take further steps as was orally indicated by him. The petitioner has made several allegations and the denials are on record, but presently we express no opinion thereon. In the event the petitioner desires to challenge the new Rules, then he can raise appropriate pleas and include in them what is highlighted in this petition and in the affidavits filed by him in answer 123 to the stand of the Central Government, particularly the Department of Civil Aviation, Directorate General of Civil Aviation and Airport Authority of India so also Mumbai International Airport Limited. We clarify that we have not expressed any opinion on the rival contentions.
20. On 3rd August 2015, this Court had passed an order observing that the PIL raises certain very important issues regarding aircraft safety and safety of the residents staying near the Airport. This Court noted that according to the petitioner, the Airport Regulatory Authority appears to have violated some of the regulations and has permitted increase of illegal height of the buildings around the Airport which has resulted in obstruction when aircrafts take off/land at Chhatrapati Shivaji International Airport as also Domestic Airport. This Court also observed that certain other issues regarding safety 124 norms to be followed have been raised. At that time, this Court observed that the pleadings are complete. When that order was passed, there was no notification notifying the Rules.
40. In our view, therefore, the PIL petitioner or the intervenor Mrs. S. Mangala or such other public spirited citizens, who are intending to challenge the legality and validity of the 2015 Rules, have enough time at their disposal to move a competent Court and in appropriate proceedings. We do not intend to continue the embargo or the prohibition placed by this Court on the Appellate Committee, particularly restraint on passing the final orders indefinitely. Let the Appellate Committee, if at all it is to meet on 26th April 2018, so meet and take up the cases, if at all they are placed before it, consider them strictly in accordance with the 2015 Rules and pass the final orders. We do not think all this can 125 happen in a single day as apprehended and before the scheduled hearing, the aggrieved parties like Mr. Shenoy can move the competent Court. We do not think it appropriate and proper to place a restraint on the Committee's functioning and its power any further.
The interim order passed in the PIL stands vacated with the above modifications observations."
Sri Udaya Holla, learned Senior Counsel further contended that in the minutes of the Meeting of the Appellate Committee for height clearance held on 22.05.2018, with regard to Aeronautical Study Cases and Committee Decision, it is observed as under:
The Appellate Authority on 23.3.2016 approved the conduct of an Aeronautical Study for a height of 73.50m AMSL.
The Aeronautical Study Report was earlier taken up by the Appellate Committee in its meeting held on 126 28.4.2017 and was submitted to the Hon'ble High Court of Bombay as per court directive w.r.t. PIL 86 of 2014.
The Committee was informed that Aeronautical Study has indicated that the requested height of 73.50m AMSL is admissible. The Committee observed that the permitted top elevation of 73.50m AMSL is the minimum as derived from allowable penetration of OLS (through Aeronautical Study), CNS and PANS-OPS criteria.
Committees' decision: The permitted top elevation (P.T.E.) of 73.50m AMSL is approved.
Serial Nos.1 to 42 pertain to building permitted height based on aeronautical study. In so far as Serial Nos.42 to 49, shielding benefit was given.
Sri Udaya Holla, learned Senior Counsel for the petitioner further contended that as per Committees' decision the Permitted Top Elevation (PTE) of 145.46mtr 127 AMSL is approved. He further contended that in the Ministry of Civil Aviation Notification dated 30.9.2015, GSR 751(E) has been referred. The purpose mentioned in Schedule-II reads as under:
Purpose:
The height or permissible elevation for the structure, requiring grant of NOC, shall be calculated based upon the international Civil Aviation Organization (ICAO) Annex 14 Obstacle Restriction and Removal, Annex 10 the Radio Communication, Navigation and Surveillance (CNS) aids and Doc. 8168, Vol. II defining the operational requirements for minimum altitudes of various segments of published or proposed instrument approach procedures.
Sri Udaya Holla, learned Senior Counsel for the petitioner also referred to Obstacles Limitation Surfaces (based on ICAO Annex 14 and DGCA India Civil Aviation Requirements (CARs) on Aerodrome Design and 128 Operations), Clause 1.4 pertaining to Inner Horizontal Surface (IHS), Clause 4 pertaining to Shielding criteria.
At 4.1 (iii), it is observed that inner horizontal surface (IHS) with a distance of 2500 meters from the runway centre line, in case of multiple runways, area encompassed by 2500M from center line of all runways.
57. The learned Senior Counsel further contended that Guidelines for issue of 'No Objection Certificate (NOC) for building constructions states that these instructions will not apply where constructions are regulated by the provisions of the existing acts/notification viz., Cantonments Act, 2006, Air Craft Act, MoCA, 1934, Gazette Notification SO 84(E) dated 14.01.2011 (as revised from time to time), Works of Defence Act, 1903, etc. In such cases the provisions of the concerned Act/Notification will continue to prevail. The learned Senior Counsel further contended that Dr.A.K.Singh, Director (L & C), Government of India, 129 Ministry of Defence, addressed a letter dated 18.05.2011 to the Chief of Army Staff, Chief of Air Staff, Chief of Naval Staff, New Delhi with regard to the Guidelines for issue of 'No Objection Certificate' (NOC) for building constructions stating that, of late issue of NOC for construction on lands adjacent to Defence Establishments has generated avoidable controversies particularly in two recent cases viz., Sukna and Adarsh, etc. The learned Senior Counsel referred to the General Procedure wherein Sl.No.5.9 prescribes that all the cases will be decided in accordance with the provisions of Government of India Gazette and additional restrictions imposed by HAL authorities. At present, there are three additional restrictions /conditions imposed by HAL, to facilitate special test flying at low level. This is a deviation from S.O.84(E): 130
i) Maximum permissible elevation within a radius of 30KM from Aerodrome Reference Point (ARP) of HAL Airport:
1037M AMSL (150M above Aerodrome Elevation of HAL Airport 887M AMSL) instead of 1187 M AMSL (300 M above Aerodrome Elevation of HAL Airport as per S.O. 84 (E))
ii) Criteria for the structures which do not constitute 'Large Objects" mentioned in Para 2.5 and 2.6 of S.O.84(E) are no to be implemented.
(iii) Aeronautical Study for permitting more height is not applicable.
58. The learned Senior Counsel for the petitioner further contended that the impugned Annexure-AQ is with regard to Cancellation of "No Objection Certificate"
(NOC) for height clearance. Paragraph 4 refers to copy of the NOC attached (Appendix 'A'). In para 3 of the NOC, the petitioner was advised in its own interest to 131 verify the elevation and other date, before embarking on the construction. Para-3 also states that if it is established that the said date tendered by you is different from the actual one, the structure in respect of which 'NOC' was issued will have to be demolished at its cost and accordingly NOC stands cancelled. Sri Udaya Holla, learned Senior Counsel further contended that Gazette Notification dated 14.01.2010 refers to Civil and Defence Aerodromes. He also contended that Notification S.O.84(E) and GSR 751 (E) both refer to Annex-14 to the Convention on International Civil Aviation issued under Section 9.A (1) to Section 9.A(2)(b) of the Act which read as under:
"Section 9A POWER OF CENTRAL
GOVERNMENT TO PROHIBIT OR
REGULATE CONSTRUCTION OF
BUILDINGS, PLANTING OF TREES, ETC.
(1) If the Central Government is of opinion that it is necessary or expedient 132 so to do for the safety of aircraft operations it may by notification in the Official Gazette,-
(i) direct that no building or structure shall be constructed or erected, or no tree shall be planted on any land within such radius not exceeding twenty kilometers from the aerodrome reference point as may be specified in the notification and where there is any building, structure or tree on such land, also direct the owner or the person having control of such building, structure or tree to demolish such building or structure or, as the case may be, to cut such tree within such period as may be specified in the notification;
(ii) direct that no building or structure higher than such height as may be specified in the notification shall be 133 constructed or erected or no tree, which is likely to grow or ordinarily grows higher than such height as may be specified in the notification shall be planted, on any land within such radius, not exceeding twenty kilometers from the aerodrome reference point, as may be specified in the notification and where the height of any building or structure or tree on such land is higher than the specified height, also direct the owner or the person having control of such building, structure, or tree to reduce the height thereof so as not to exceed the specified height, within such period as may be specified in the notification.
(2) In specifying the radius under clause (i) or clause (ii) of sub-section (1) and in specifying the height of any building, structure or tree under the said clause (ii), the Central Government shall have regard to-134
(a) the nature of the aircraft operated or intended to be operated in the aerodrome; and
(b) the international standards and recommended practices governing the operation of aircraft."
Sri Udaya Holla, learned Senior Counsel contended that Rule 29C of the Rules refers to-
29C. Adoption of the Convention and Annexes-
(1) The Director-General may lay down standards and procedures not inconsistent with the Aircraft Act, 1934 (22 of 1934) and the rules made thereunder to carry out the Convention and any Annex thereto.
(2) The Director-General shall formulate the State Safety Programme and oversee its implementation." Explanation.- For the purposes of this sub-rule, "State Safety Programme" means an integrated set of 135 requirements and activities aimed at improving safety."
59. Sri Udaya Holla, learned Senior Counsel for the petitioner further contended that this Court, by the Order dated 07.12.2015, in the present writ petition, at paragraphs 16, 22 and 23, held as under:
"16. In the circumstances, there appears to be sufficient misunderstanding of aspects to be reckoned by the Airport Authority of India in the matter of conducting a survey, in compliance with the directions in the order dated 05.11.2015. Suffice it to notice that the modification/clarification of the order dated 31.07.2014 is based upon pleadings of both parties and the specific direction to the AAI was to conduct the Aeronautical study of Bengaluru (HAL) Aerodrome to ascertain as to whether or not the building constructed or to be constructed to the height of 62 meters above the ground 136 level of the property in question, in accordance with the notified parameters and Annexure-B for HAL Airport, would affect (safety) of the Airport operations.
22. Sri Uday Holla, learned Senior submits that the parameters for HAL Airport are provided on e-AIP website, more appropriately Annexures-BL1 and BL2 to the memorandum of writ petition, while Sri Pradeep Sahukar, learned counsel for respondent No.1 HAL on instructions submits that the said website is that of the AAI and contents therein bind the HAL Airport authorities. The website of e-AIP of India, it is argued, contains a document with the nomenclature AD-2.10BG relating to HAL Airport, Bengaluru/domestic, furnishing all material particulars over location and administrative data constituting sufficient material to conduct Aeronautical study by AAI.137
23. Having regard to the specific stand of respondent /HAL in its statement of objections to I.A. No.2/2014 following which by the order dated 5.11.2015 directed modification of the order dated 31.07.2014, undoubtedly, the AAI is required to comply with the said order to conduct Aeronautical study of Bengaluru (HAL) Aerodrome in terms of notified parameters, Annexure-B (S.O.84(E), to the petition for HAL Airport to ascertain as to whether or not the building constructed or to be constructed above 62 meters from the ground level of petitioner/s property would affect the safety of Airport operation and submit the report in any event by the 31st December 2015."
The learned Senior Counsel also referred the letter written by A.K.Bhardwaj, GM(ATM-NOC), Airports Authority of India to the General Manager (LCA-Tejas), Hindustan Aeronautics Ltd. (HAL) dated 27th January, 138 2016 with reference to the report on the Aeronautical Study conducted as directed by this Court in the present writ petition (Chalet Hotels -vs- HAL) and in the said report, at paragraph-9, has come to the conclusion as under:
9.Conclusions:
a) The existing structure, for requested top elevation 954.41mtr AMSL, penetrates the Inner Horizontal surface of Bangalore airport by margin of 21.23 M which exceeds the permissible height of 45M by 47.17%.
b) The desired height of 954.41m AMSL is within the maximum allowable penetration of OLS as per the Aeronautical Study guidelines.
c) The Safety impact of the existing structure due to the degraded aircraft performance operations is not in the scope of this study.139
d) The existing structure of 954.41m AMSL will not affect adversely the safety and regularity of aircraft from PANS-OPS criteria.
e) The existing structure of 954.41m AMSL will not adversely affect the performance of the CNS equipment.
f) Airport Operator should ensure that the applicant/owner/builder carry out marking and lighting of the structure as per the DGCA CAR and the obstacle is published.
60. The learned Senior Counsel for the petitioner further contended that the experts from the National Flights Test Centre (NFTC) say that, 'there is always a degree of uncertainty during test flights'. But we carry out the test at least 50 nautical miles south or south- east of Bengaluru, so that it does not take place over residential areas. He further contended that Section 11 140 of the Aircraft Act, 1934, refers to penalty for flying so as to cause danger, which reads as under:
"11. Penalty for flying so as to cause danger.--Whoever willfully flies any aircraft in such a manner as to cause danger to any person or to any property on land or water or in the air shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both."
Sri Udaya Holla, learned Senior Counsel for the petitioner further contended that the affidavit filed by HAL states that, eversince the beginning, the Company and the Aircraft activity is directly under the control of Ministry of Defence, Government of India. Various types of test flying activities are being carried on in the Airport by following the norms laid down in the Aircrafts Act, 1934. The HAL airport has been in existence from 1940 and the activity being carried on within the airport 141 has never posed any danger to the inhabitants of the nearby area. Further, the test flying activities are undertaken in designated test flying airspaces as notified in the eAIP manual and as such, do not fall within the purview of the DGCA and are carried out based on parameters set out by the military. Learned Senior Counsel also referred to the provisions of sub Rule (18) of Rule 3 of the Aircraft Rules, 1937, which refers to 'Director General' means Director General of Civil Aviation. Learned Senior Counsel referred to Rule 133A of the Aircraft Rules, 1937, which reads as under:
133A. Directions by Director-
General-
(1) The Director-General may, through Notices to Airmen (NOTAMS), Aeronautical Information Publication, Aeronautical Information Circulars (AICs), Notices to Aircraft Owners and Maintenance Engineers and publication entitled Civil Aviation Requirements, 142 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. (2) The Civil Aviation Requirements under sub-rule(1) shall be issued after placing the draft on the website of the Directorate General of Civil Aviation for a period of thirty days for inviting objections and suggestions from all persons likely to be affected thereby;
Provided 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.
(3) Every direction issued under sub- rule(1) shall be complied with by the 143 person or persons to whom such direction is issued.
61. Sri Udaya Holla, learned Senior Counsel for the petitioner contended that in the letter dated 25.06.2013, written by General Manager, Airport Authority of India, addressed to the General Manager (ASC & LCA), HAL, it is specifically stated that, if HAL/Defence Authorities approach, Airports Authority of India can conduct Aeronautical Studies for HAL. A fee of Rs.20 lakhs -Service Tax (Total Rs.22,47,200/-) per Aeronautical Study case is to be paid to the Airports Authority of India in the form of a Demand Draft payable at Delhi along with an Agreement for conducting Aeronautical Study. Normally it takes two months' time for Aeronautical Study after signing of agreement and receipt of the Guidelines for conducting Aeronautical Study for HAL airport. He also invited attention of the Court to the Order passed by this Court dated 31.07.2014 that in the circumstances, prima 144 facie, the re-survey of elevation of the 'land in question' by itself and nothing more, without an aeronautical study, cannot determine the maximum permissible height of the building to be reckoned as 45 mtr AMSL. Viewed in this perspective, declining the interim relief
(b) would be travesty of justice occasioning grave injustice to the petitioner". In the said Order, it is also stated that "in the circumstances, no injustice will be caused to the first respondent if directed to request AAI to process petitioner's application to conduct an aeronautical study of the Bengaluru (HAL) Aerodrome at the cost of the petitioner, after due process, in compliance with clause-5 of Annexure-II to the notification, Annexure-B. The 1st respondent is directed accordingly."
Sri Udaya Holla, learned Senior Counsel for the petitioner further contended that the respondent HAL made request dated 23.01.2017 to the Secretary, 145 Ministry of Civil Aviation, Government of India, Rajiv Gandhi Bhawan, Safdarjung Airport, New Delhi to re- open HAL Airport, Bangalore for shortfall scheduled commercial operations and consider it as an RCS Airport under the Airport Regional Connectivity Scheme
- UDAN. In para-6 of the said letter it is stated that 're- opening of HAL Airport for commercial operations would ease congestion of Kempegowda International airport. This would also benefit commercial airline operations as HAL airport will become de-facto primary alternate airport for KIA leading to less operating costs for airlines Currently Chennai is the primary alternate airport. In view of the above, we look forward to a positive response from you end for re-opening of HAL Airport.
62. The learned Senior Counsel for the petitioner further contended that in the affidavit filed by Rajendra Sharma in W.P.No. 11486/2008 (GM)(PIL) preferred by the Airport Authority of India Employees Union at para- 146 4 it is stated that 'HAL Airport at Bangalore was operating Domestic and International flights until May 23, 2008 with 360 Aircraft Movements daily on an average. Capacity of the airport was 30 aircraft movements/ hour and the terminal had handled 10.2 million Passengers in the year before the closure and managed 60,000 tons of cargo during the year 2007-08. The learned Senior Counsel also referred to para-7 wherein it is stated that 'it is pertinent to mention that separation standards prescribed in ICAO (International Civil Aviation Organisation) documents and DGCA Guidelines are strictly adhered by HAL ATC for both civil and military aircraft movement at all times. The Safety measures for all the flights whether it is Defence or Civil Flights is one and the same and the facilities which are extended cannot be distinguished between Civil Flights as well as Defence Flights.' In para-9 of the affidavit it is stated that, before closure of the Airport on 23.05.2008, the revenue earning was about Rs.250 147 crores during the year 2007-2008. Though the Domestic Air Service has been abandoned the said airport is intact with all its infrastructure and paraphernalia and the HAL Airport is ready and fit condition if the domestic airlines is ready to operate from the HAL Airport. Once, if the domestic airlines are allowed to operate from HAL Airport we are ready to support such operations. In such an event the present HAL Airport is in a position to accommodate domestic airlines. The learned Senior Counsel further contended that at para-10 of the affidavit, it is stated that, if a chance is provided or an opportunity is extended to HAL, they are ready to undertake and provide all facilities and infrastructure for the purpose of running the Domestic/International flights. Further at para-11, it is stated that HAL Airport has handled Civil and Military aircrafts in the past and has continued the same till date without compromising air safety. Further it is reiterated that HAL has got all necessary 148 infrastructure for handling commercial scheduled flights along with military flying.
63. Sri Udaya Holla, learned Senior Counsel for the petitioner further contended that, the Civil Aviation Requirements, Section 9 - AIR SPACE AND AIR TRAFFIC MANAGEMENT SERIES 'I' PART I ISSUE II, 8TH JANUARY 2010, issued by the Director General of Civil Aviation covers all aspects of aeronautical information services which include NOTAM. NOTAM- A notice to airmen distributed by means of telecommunication containing information concerning the establishment, condition or change in any aeronautical facility, service, procedure or hazard, the timely knowledge of which is essential to personnel concerned with flight operations. The responsibility of issuing NOTAM is with Airports Authority of India. A NOTAM is filed with an aviation authority to alert aircraft pilots of any hazards en route or at a specific 149 location. The authority in turn provides a means of disseminating relevant NOTAMs to pilots. The aviation authorities typically exchange NOTAMs over AFTN circuits. Software is available to allow pilots to identify NOTAMs near their intended route or at the intended destination. The Civil Aviation Requirement is issued under the provisions of Rule 29C and Rule 133A of the Aircraft Rules, 1937, for provision of aeronautical information service to ensure the flow of information/data necessary for the safety, regularity and efficiency of air navigation.
64. Sri Udaya Holla, learned Senior Counsel further contended that under clause 2.1, 2.1.1 of the Civil/aviation requirement refers to Responsibilities and Functions, which reads as under:
2.1. Responsibilities 2.1.1 Aeronautical information service (excluding publication of Aeronautical 150 Information Circulars (AIC) shall be provided by Airports Authority of India (AAI). AIC shall be published by DGCA.
2.1.2 AAI shall ensure that the provision of aeronautical data and aeronautical information covers its own territory and those areas over the high seas for which it is responsible for the provision of air traffic services.
5.1 refers to Origination.
5.1.1.1. A NOTAM shall be originated and issued concerning the following information:
a)xxxx
b)xxxx
c)xxxx
d)xxxx .....
l) presence of hazards which affect air navigation (including obstacles, military exercises, displays, races and major 151 parachuting events outside promulgated sites) He further contended that, Annexure-CX, Monthly NOTAM Summary, A Series NOTAM are valid on 01 January 2016, NOTAM not included in the list have been cancelled, time expired, superseded by AIP Supplement or incorporated in the AIP, as under:
BANGALORE VOBG
A1482/14 1408011130/PERM FUEL
AVBL
AVGAS 100LL REFUELLING NOT AVBL
A1792/14 1409200508/PERM
XXXX
AVOID ARR/DEP0015 MIN PRIOR TO AND
0045 MIN AFT SUNSET DUE BAT ACTIVITY OVER THE AIRPORT A0305/15 1502210630/PERM RWY ARRESTER BARRIER INSTL AT BOTH ENDS OF RWY09 DUMBELL40M BEYOND THR AND RWY27 DUMBELL 32M BEYOND THR.
BARRIER IS RAISEDONLY FOR FIGHTER OPS. BARRIER WHEN RAISED AT THE END OF ACTIVERWY HAS HGT OF APRX 3.4M.
BARRIER ARMS IN LOWERED PSN HASHGT OF APRX 0.25M ON EITHER SIDE BEYOND DUMBELL. BARRIER ISREMOTELY 152 CONTROLLED FM TWR. PILOTS TO EXER CTN WHILE LDG AND TKOF BANGALORE VOBG INTERNATIONAL A1184/12 1206251030/PERM XXXX HAL AIRPORT BENGALURU VOBG A1482/14 1408011130/PERM FUEL AVBL A1792/14 1409200508/PERM XXXX A0305/15 1502210630/PERM RWY A2058/15 1511031100/PERM ILS Sri Udaya Holla, learned Senior Counsel for the petitioner contended that as per VOBG AD 2.10 AERODROME OBSTACLES, different obstacle types includes Tree (Pipal), Mobile RD TFC, TV Tower, Jayanagar Complex, Public Utility Building etc. and in 153 the aeronautical study report submitted in June 2015 by the Airport Authority of India, the following conclusion is arrived.
(b) The safety impact of the proposed structure due to the degraded aircraft performance operations is not in the scope of this study.
(c) The proposed structure of 71.34m AMSL will not affect adversely the safety and regularity of aircraft from PANS-OPS criteria.
(d) The proposed structure of 71.34m AMSL within the specified geo coordinates will not adversely affect the performance of the CNS equipment.
As per the above conclusions, the requested permissible height of 71.34m AMSL may be permitted. The conclusion arrived at in the comments of the Star Global Aero Solutions Limited, New Delhi, on the 154 affidavit filed by the HAL, Bengaluru, in the above writ petition is as under:
(a) The Aeronautical Study conducted by AAI pursuant to the direction of the Hon'ble High Court for the structure constructed and to be constructed by CHPL, is as per the notified parameters for HAL airport and the Notifications issued under Section 9A of the Aircraft Act, 1934 [i.e.S.O.84(E) dated 14.1.2010, and G.S.R.751 dated 30.9.2015 which has superseded S.O.84(E)].
(b) The Aeronautical Study conducted by AAI has concluded that the structure height of 954.41 mtrs AMSL is permissible, and would not adversely affect aircraft operations.
(c) In our opinion, the Objections raised by HAL would not affect the outcome of the Aeronautical Study Report of AAI by the experts, former DGA, AAI dated 29.03.2016.
155
65. Sri Udaya Holla, learned Senior Counsel further contended that the Prime Objective of the study is to ensure the safety of air navigation, efficient utilization of airspace and airport by the aircraft, based on the instrument/visual flight procedures in operation and planned instrument flight procedures during normal aircraft operations. The SCOPE OF AERONAUTICAL STUDY is to verify whether an existing or proposed structure, penetrating or expected to penetrate the obstacle limitation surfaces as detailed in ICAO Annex 14, resulting in deviation from the Standards, is presumed to be a hazard to air navigation unless the Aeronautical Study determines that safety and regularity of aircraft operations is not adversely affected during the normal aircraft operations. He further contended that in the letter dated 28.10.2013 issued by the Karnataka State Remote Sensing Applications Centre, addressed to the petitioner-Chalet Hotels Private Limited, it is specifically stated that 156 Finding out the permissible height of constructions and other Aeronautical studies are not within the scope of the work authorized by HAL.
Referring to the statement of objections filed in the present writ petition, Sri Udaya Holla, learned Senior Counsel contended that, during August-September 2012, eight months after the issuance of 'No Objection Certificate', 1st respondent conducted a random check of NOC applications with Survey of India maps, it was revealed that the AMSL submitted along with the application was vastly different from the data available with them as per Annexure-R1. Para-32 of statement of objections states that, respondent had arrived at the said figure (932 meters) after a conclusive examination of the site elevation at HAL Airport, Runway strip and Approach Funnel, Inner Horizontal Surface, Outer Conical Surface, Outer Transitional Surface and Outer Horizontal Surface of the HAL Aerodrome. 157
66. Finally, Sri Holla, learned Senior Counsel for the petitioner, contended that, the judgments cited by HAL are on facts and issues which are completely different from the facts and issues in the present petition, and are all distinguishable in the light of the core facts, i.e.,
1. Implementation of (a) the condition "and which could adversely affect aircraft operations, the structure or part (s) thereof ...... will have to be demolished...." as specified by HAL itself in the NOC, and (b) the Regulations i.e., the Aircraft Act, Aircraft Rules, ICAO, Notification S.O.84(E), Notification GSR 751(E).
Admittedly HAL Published "deviation" from the Notification after filing of the petition, to prohibit Aeronautical Study prospectively, and omitted the said condition while issuing further NOC's after filing of the petition.
158
2. Petitioner applying for height NOC of 110 mtrs, reduced to 62 mtrs by HAL after a conclusive examination by HAL NOC Committee (but without checking the SOI map or elevation of nearby sites and marks which were available with HAL at the time grant of NOC). Petitioner constructing 62 mtrs as expressly permitted by the HAL NOC. The construction by the petitioner was not without any NOC or an illegal construction.
3. Subsequently HAL checked the SOI map and discovered a difference of AMSL which was quantified by KSRSAC Survey Report to be of 22 mtrs.
4. AAI offering to conduct the Aeronautical Study, if requested by HAL.
5. HAL thereafter expressly admitting that - " The primary object of fixing the maximum height under Section 159 9A of the Aircraft Act, 1934 is to secure safety of Aircraft operations in and around the Aerodrome. Thus, the only way in which it can be ascertained is through Aeronautical Study of aircraft operations based on notified parameters for HAL Airport".
6. Aeronautical Study report of AAI confirming that the existing and the proposed wings do not adversely affect aircraft operations.
7. The undisputed fact, that HAL cannot and does not carry out test flying activities over the densely populated areas of Bengaluru, and HAL's admission that the safety measures for civil and defence flights is one and the same.
8. 7 experts in the field, including 2 ex- DGCAs (Director Generals of Civil Aviation), 1 former Chairman of NOC Committee of AAI, confirming the 160 procedure and safety by Aeronautical Study Report.
67. Sri Udaya Holla, learned senior counsel relied upon the following judgments:
1. Mobilix Vs, Kirusa reported in 2017(11)SCALE 754 - Para-29
2. Shrishti Infrastructure made in W.P. 7652/2015 - Paras 10,16,18,19
3. P. Radhakrishna Naidu Vs. Govt, of A.P. reported in (1977) 1 SCC 561 - Para 13
4. New Okhla Industrial Development Authority reported in (2006) 9 SCC 524 - Paras 11,12 5A. State of U.P. vs. Lakshmi Sugar and Oil Mills reported in (2013) 10 SCC 509 - Para 20 5B. State of Bihar vs. Jain Plastics reported in (2002) 1 SCC 216- Para 7 line 2 onwards.
6. Chameli Singh Vs. State of U.P. reported in (1996) 2 SCC 549 -Para 18 Public purpose.161
7. Indian Bank Vs. Satyam Fibres (India) Pvt.
Ltd., reported in 1996(5) SCC 558 - Para 20 & 23.
8. Bhaurao dagdu Vs. State of Maharashtra reported in (2005) 7 SCC 605 - Paras 9-12
9. T. Vijendradas Vs. M. Subramaniam reported in (2007) 8 SCC 751 - Paras 18,19,27 & 28,
10. Amresh Tiwari Vs. Lalta Prasad reported in (2000) 4 SCC 440 -- Para 10 - interim orders
11. (2007) 8 SCC 449, Para 33-36- Prestige Lights Para 34 & 35 - suppression
12. 2017 SAR 100 Tahsildar, Taluk Office, Tanjore Vs. G. Thambidurai & another, Para 24 II. Party cannot approbate & reprobate:
1. Shyam Telelink Ltd., vs. Union of India reported in 2010(10) SCC 165 (Paras 3,23,25 & 26) A Party cannot approbate and reprobate.
A Party cannot take advantage of one part of a document and reject the rest. Law 162 does not permit a person to approbate and reprobate.
III. Plead of fraud to be specifically pleaded and proved
2. M/s National Technological Institutions (NTI) Housing Co-operative Society Ltd., and Others vs. The Principal Secretary to the Government of Karnataka, Revenue Department and others reported in ILR 2012 KAR 3431 (Paras 28 & 29) When fraud is charged against the opposite party, there must be express allegation of fraud in the pleading and all material facts in support of the allegations must be laid down in full and with high degree of precision. Fraud being a question of fact, has to be pleaded and proved in the Writ Proceedings.
3. Ranganayakamma vs. K.S. Prakash reported in AIR 2005 KAR 426 (Paras 46 to 51) 163 Plead of fraud is to be raised in the pleadings by furnishing particulars, which should be concise but also precise and it is not enough to use the general word such as 'fraud'. The degree of proof of fraud is extremely high.
4. Bishundeo Narain and another vs. Seogeni Rai and Jagernath reported in AIR 1951 SC 280 (Para 27 & 28) In cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars as laid. General allegations are insufficient even to amount to an averment of fraud.
5. Sri Krishnan Vs. Kurukshethra University, Kurukshethra reported in 1976(1) SCC 311 (Para 7) Where a person on whom fraud is committed is in a position to discover the truth by due diligence, question of fraud does not arise.
164
6. Svenska Handelsbanken vs. M/s Indian Charge Chrome & others reported in 1994(1) SCC 502 (Paras 41, 42 & 87) Fraud cannot be found merely on suspicion. Material evidence must show it.
7. Kale and others vs. Deputy Director of Consolidation and others reported in 1976 (3) SCC 119 (Head note & Para 29) Allegations of fraud must be clearly pleaded and proved by clear and cogent evidence. (Para 29- line 7) IV. Plea of estoppel not permissible if facts could be known to a party by exercise of ordinary diligence
8. ILR 1929 ALL 248 (Page 250 last 11 lines & Page 251, 6 lines) Where truth is accessible to a party, the plea of estoppel upon representation tails. If the defendant behaved diligently and prudently and pushed their enquiries further afield, it would be have been 165 impossible for them not to know the truth.
9. Lachman Singh vs. Collector of Moradabad and another reported in AIR 1933 ALL 641 (Para 4) If a fact could have been known to a party by exercise of ordinary diligence, the plea of estoppel cannot be raised V. Court should be slow in interfering with opinion of experts
10. State of Madras vs. N.K.Nataraja Mudaliar reported in AIR 1969 SC 147 (Para 34) Views of an expert committee on a subject so complicated as tax on inter-state sales, is entitled to great weight. In the very nature of things it is difficult for courts to ascertain various factors that impede the free flow of trade or to assess their importance. In assessing the strength of economic force in a given matter, the views of a person who may be expected to be familiar with the subject is entitled to 166 weight and in the absence of clear proof to the contrary or unless it is shown that their conclusions are obviously wrong, it will be proper for the court to proceed on the basis that the conclusions reached by them are correct.
11. N.D.Jayal and another vs. Union of India and others reported in 2004 (9) SCC 362 (Paras 16,17,20 & 21) Construction of Tehry dam was assailed in a writ petition before the Supreme Court in a petition under Article 32 on the ground that of increased seismic vulnerability of the Himalayan region where the Tehry dam was being constructed would pose danger to the dam.
The respondents in their objections stated that there were scientific studies conducted by experts and all the experts have opined that there would be no danger to the dam on account of seismic activities.
167HELD: Court cannot sit in judgment of cutting edge of scientific analysis relating to safety of any project (Para 20) Any scientific matters of complex thing, reference has to be made to specialized / technical expert bodies ... Court cannot site in judgment over decision of experts especially when there is no difference of opinion among the experts. (Para 21 )
12. G.Sundarrajan vs. Union of India reported in 2013 (6) SCC 620 (PARA 209, 210) Court should be slow to interfere with the opinion expressed by experts and it would be normally be wise and safe for courts to leave the decision to experts who are more familiar with the problems. (Para 209) Court cannot sit in judgment on the views expressed by technical and scientific bodies regarding safety and security of a nuclear plant. (Para 210) VI. Courts are empowered to appoint a commissioner and accept/rely on his report 168
13. Bandhua Mukti Morcha vs. Union of India reported in 1984(3) SCC 161 (Paras 14 &
15) It would not be correct to say that report of the commissioner has no evidentiary value since statements are not tested by cross examination (Para 15 pg 206 last 15 lines to pg 207, 9 lines).
High Court while exercising powers under Article 226 has wider power to appoint a commissioner not only for enforcement of a fundamental right but also for enforcement of any legal right. Report of the commissioner has evidentiary values and the court can rely upon such report(Para 15 ) VII. Suspicion not substitute to proof
14. Ajay Hasia and others vs. Khalid Mujib Sehravardi and others reported in 1981(1) SCC 722 (Para 19 at Page 746) Chart does create strong suspicion that marks awarded at viva voce might have 169 been manipulated. But suspicion cannot take place of proof and plea of malafides cannot be held to be established (Civil case)
15. Rajkumar Singh vs. State of Rajasthan reported in 2013 (5) SCC 722 (Head Note
- G & Para 21) Suspicion no matter how strong cannot and must not be permitted to take place of proof.
16. Bhandari Construction Co. vs. Narayan Gopal Upadhye reported in 2007 (3) SCC 163 (Para 15) Mere suspicion that builders of the country are prone to take part of sale amount in cash is no ground to accept the claim of payment of Rs.4.00Lakhs in cash. (Civil case) VIII. Party shall not make inaccurate, untrue and misleading statement before court
17. Hari Narain vs. Badridas reported in AIR 1963 SC 1558 (Para 9) 170 It is utmost important that in making material statements before court, care must be taken not to make any statements which are inaccurate, untrue or misleading. It would be unfair to betray the confidence of the court by making statements which are untrue and misleading.
Hence, Sri Udaya Holla, learned Senior Counsel sought to allow the writ petition as prayed for. IV ARGUMENTS ADVANCED BY SRI SAJAN POOVAYYA, LEARNED SENIOR COUNSEL FOR RESPONDENT Nos.3, 11 to 13, 16 to 25, 27 to 29, 32 to 34, 36 to 38, 40 to 45, 47, 48, 54, 56 to 62, 64, 67, 69, 71, 73 and 74 - PURCHASERS
68. Sri Sajan Poovayya, learned senior counsel appearing for Respondent Nos.3, 11 to 13, 16 to 25, 27 to 29, 32 to 34, 36 to 38, 40 to 45, 47, 48, 54, 56 to 62, 64, 67, 69, 71, 73 and 74 contended that the said respondents are purchasers of apartments from the petitioner, but possession was not delivered to them 171 because of non-completion of the apartments, in view of the interim order passed by this Court. He would further contend that on 28.10.2011 HAL given NOC to the petitioner to build upto a height of 62 meters as per Annexure-A and subsequently cancelled on 16.8.2013. That is, HAL allowed the petitioner to construct the building with NOC for a period of 22 months and thereafter cancelled the NOC. On 15.9.2012 HAL expressed doubt about permissible height of construction. On 20.5.2013 HAL directed the petitioner to stop construction without issuing any public notice. In view of the conduct on the part of the HAL, it is necessary to conduct aeronautical study by the competent authority (AAI). He also invited the attention of the Court to the notification - S.O. 84(E) dated 14.1.2010, wherein at Sl.No.2(b) it is stated that for Defence aerodromes, defence authorities shall be responsible for issuing NOC in accordance with the said notification and subject to any other restriction or 172 condition which such authorities deemed fit for issuing the NOC. He further contended that while issuing NOC to the petitioner on 28.10.2011, two conditions were imposed at Serial No.3 to the effect that if at any stage it is established that the said data as tendered by the said applicant is actually different from one tendered and which could adversely affect aircraft operations, the structure or part(s) thereof in respect of which "NOC" is issued will have to be demolished at his own cost as may be directed by the HAL Airport, Bangalore.
69. Sri Sajan Poovayya, learned Senior Counsel further contended that while issuing NOC, 870 meters (site elevation) + 62 meters (height of the construction) i.e., 932 meters AMSL was granted. While canceling NOC on 16.8.2013, it was cancelled in its entirety and it amounts to giving room to demolish the entire building, which is arbitrary and in violation of Article 14 of the Constitution of India. He would further contend that 173 cancellation order does not disclose with regard to the violation of conditions of grant of NOC. He would further contend that cancellation of NOC without aeronautical study is impermissible. He contended that in the objections filed by the HAL at paragraph-15, it is stated that it is only in the event HAL approaches AAI to conduct the same, it would do so. A copy of the letter dated 25.06.2013 issued by AAI to respondent is produced as Annexure-R5. In the objections, it is stated that the AAI does not conduct Aeronautical Study even for the purpose of issuance of NOCs around Civil Aerodromes. It is also stated that the point in dispute is the AMS Level of the construction site which can be ascertained only by a field survey.
70. Sri Sajan Poovayya, learned senior counsel also contended that at paragraph-5 of the objections filed by the HAL to the I.A. filed by the petitioner, it is stated that the primary object of fixing the maximum 174 height under Section 9-A of the Aircrafts Act,1934 is to secure safety of Aircraft operations in and around the Aerodrome. Thus, the only way in which it can be ascertained is through Aeronautical Study of Aircraft operations based on notified parameters for HAL Airport. He further contended that in the letter dated 6th November 2015 written by HAL to the Airport Authority of India, a request has been made to conduct an Aeronautical Study to ascertain whether the existing building/proposed construction to the height of 62 meters above ground level would adversely affect the safety of Aircraft operations at HAL Aerodrome based on the notified parameters as on 28.10.2011 (date of issuance of NOC) and the statutory stipulations in Gazette Notification S.O.84(E) dated 14.01.2010 issued by the Ministry of Civil Aviation. A Memorandum of instructions containing the relevant details for the conduct of the Aeronautical Study was also enclosed to the said letter and it is also stated in the letter that 175 required data in this regard may be intimated to the HAL.
71. Sri Sajan Poovayya, learned senior counsel further contended that in terms of the order passed by this Court and the regulations made by the HAL, AAI has submitted report on 15.12.2015 and come to the following conclusions:
a) The existing structure, for requested top elevation 954.41 Mtr. AMSL, penetrates the Inner Horizontal surface of Bangalore airport by margin of 21.23M which exceeds the permissible height of 45M by 47.17%
b) The desired height of 954.41m AMSL is within the maximum allowable penetration of OLS as per the Aeronautical Study guidelines
c) The safety impact of the existing structure due to the degraded aircraft performance operations is not in the scope of this study.
d) The existing structure of 954.41m AMSL will not affect adversely the safety and regularity of the PANS-OPS criteria.
176
e) The existing structure of 954.41m AMSL will not adversely affect the performance of the CNS equipment.
f) Airport Operator should ensure that the applicant/owner/builder carry out marking and lighting of the structure as per the DGCA CAR and the obstacle is published.
72. Sri Sajan Poovayya, learned senior counsel invited the attention of the Court to the International Standards and Recommended Practices (Annex 14 to the Convention on International Civil Aviation) wherein at 4.2.20 it is stated that new objects or extensions of existing objects should not be permitted above the conical surface and the inner horizontal surface except when, in the opinion of the appropriate authority, an object would be shielded by an existing immovable object, or after aeronautical study it is determined that the object would not adversely affect the safety or significantly affect the regularity of operations of aeroplanes. As per 4.2.21 of Annex 14 to the 177 Convention of International Civil Aviation, existing objects above an approach surface, a transitional surface, the conical surface and inner horizontal surface should as far as practicable be removed except when, in the opinion of the appropriate authority, an object is shielded by an existing immovable object, or after aeronautical study it is determined that the object would not adversely affect the safety or significantly affect the regularity of operations of aeroplanes.
73. Sri Sajan Poovayya, learned Senior Counsel would further contend that in the statement of objections filed by the 1st respondent at paragraph 32, it is stated that the averment that the respondent has erred in limiting the construction to 932 meters AMSL is denied as the respondent has arrived at the said figure after a conclusive examination of the site elevation at HAL Airport, Runway strip and Approach Funnel, Inner Horizontal Surface, Outer Conical Surface, Outer 178 Transitional Surface and Outer Horizontal Surface of the HAL Aerodrome and contended that, the action of the 1st Respondent cannot be said to be arbitrary to warrant interference by this Court. By a reading of the statement of objections filed by the 1st respondent, it is found that if the HAL authority after conclusion and examination granted NOC, it is not open for the HAL to now cancel the NOC on the ground that the petitioner has given wrong data of the ground level, which is impermissible. Before cancellation of the NOC, no notice or opportunity was given to respondent Nos. 2, 3, 11 to 74 - the purchasers from the petitioner- builder.
Sri Sajan Poovayya, learned Senior Counsel would further contend that in the letter written by Wg.Cdr. M.P. Srinivasan, Retired Deputy General Manager (Aerodrome) to the present petitioner - M/s. Chalet Hotels Limited, it is specifically stated at para-2 that 179 HAL-NOC-Committee has no role in surveying and verifying the elevation of a site. This practice is being followed by Airports Authority of India (AAI) and the same is adopted by HAL. He further pointed out from para-3 that though the NOC for 932M was issued by HAL, in later stages, it was found that the site elevation of 870M varying drastically from the elevations of nearby sites and landmarks. Hence, in the interest of Air Safety, the petitioner was advised to carry out the resurvey of the site and check the site elevation.
74. Sri Sajan Poovayya, learned senior counsel further contended that Clause 4.6 of the Air Traffic Management Circular No.02 of 2013 prescribes that the Regional NOC cells and the station level NOC cells shall handle NOC cases of buildings, structures and masts. Accordingly the following NOC cells with their designated officers have been established.
180
Regional level
NOC cell Designated Officer
i) RHQ, Delhi General Manager (AERO)
Northern region
ii)RHQ, Kolkata General Manager (AERO)
Eastern region
iii) RHQ, Chennai General Manager (AERO)
Southern region
iv) RHQ, Mumbai General Manager (AERO)
Western region
v)RHQ,Guwahati General Manager (AERO)
East region
Sri Sajan Poovayya, learned Senior Counsel would contend that Clause 4.11 of the Air Traffic Management Circular No.02 of 2013 prescribes that the NOC Committee at the Regional Level shall comprise the following:-
i) General Manager (Aero), Region
Designated
Officer and
Chairman
ii) Jt. GM (N&S)/ Dy. GM (N&S) Member
iii) Dy. GM (IAL) SM(IAL) Member 181
iv) Representative of Airport Member Operator as applicable
v) Dy. GM(NOC)/ Senior Member Secretary Manager (NOC) Sri Sajan Poovayya, learned senior counsel would further contend that Clause 4.12 of the Air Traffic Management Circular No.02 of 2013 reads as under:
"The NOC Committee at the Station Level shall compromise the following:-
i) General Manager(ATM) Designated Officer Jt.GM(ATM)/ Dy.GM(ATM) and Chairman
ii) JT. GM(N&S)/ Dy. GM (N&S) Member
iii) Dy.GM(IAL)/SM(IAL) Member
iv) Representative of Airport Member Operator as applicable
v) Senior Manager (NOC)/ Member Secretary"
Manager (NOC)
75. Sri Sajan Poovayya, learned senior counsel would further contend that in terms of Clause 4.13 of the Air Traffic Management Circular No.02 of 2013, the site plotted on the grid map/zoning map of the 182 aerodrome or on a map of suitably large scale and the site plotted by NOCAS for calculation of the permitted height needs to be checked for accuracy. Thereafter, the case will be put before the Committee to permit the proper examination in which PANS-OPS criteria shall also be considered. Therefore he would contend that unless and until aeronautical study is conducted by the competent authority, the respondent - HAL cannot cancel the NOC without assigning any reasons. Therefore, he sought to allow the writ petition.
76. In support of his contentions, learned counsel relied upon the following judgments:
1. LEVER FINANCE LIMITED .vs. WESTMINSTER (CITY) LONDON BOROUGH COUNCIL reported in (1970)3 WLR 732, wherein it is observed that there are authorities which say that a public authority cannot be estopped by any representations made by its officers 183 and cannot be estopped from doing its public duty.
2. GODREJ AND BOYCE MANUFACTURING COMPANY LIMITED AND ANOTHER .vs. STATE OF MAHARASHTRA AND OTHERS reported in (2014)3 SCC 430 (paragraphs 83, 84 and 85) V Arguments advanced by the Learned Counsel for the 1st Respondent-HAL
77. Per contra, Sri Ananth Mandagi, learned Senior Counsel for respondent No.1 mainly raised three points:
i) That the writ petition filed by the petitioner for the relief sought for is not maintainable;
ii) That because of the conduct and fraud played by the petitioner, it is not entitled to the relief sought for; and
iii) That the aeronautical study is not provided as per the Notification dated 14th January, 2020 issued by the Civil Aviation, Annexure-B to the 184 Defence Airports and is only for Civil Airports.
He would further contend that the petitioner's building is the only highest building within four kilometers of the Inner Horizontal Surface at 954 meters AMSL and no other building is situated within four kilometers of Inner Horizontal Surface. The permissive limit in terms of Annexure-B is only 932 meters AMSL. He would further contend that the said notification issued by the Central Government fixing the parameters is not challenged by the petitioner i.e., 800 + 45 + 933 meters. The petitioner's building is within 3.35 klms., instead of 4 klms., as prescribed in the Notification, Annexure-B. and the Central Government is not made as a party to the writ petition. Therefore, the writ petition is liable to be dismissed on that ground alone.
78. The learned Senior Counsel for the 1st respondent further contended that in the statement of 185 objections filed in the present writ petition by the HAL at paragraph-5, it is stated that the primary purpose for issuing NOC for high rise buildings is to restrict obstacles within the imaginary limitation surfaces called 'Obstacle Limitation Surfaces (OLS) and any penetration of the limiting surfaces endangers safety. The Notification dated 14.1.2010 has been developed and promulgated keeping in view the operation at Civil Aerodromes. It is further contended that in the said Notification, it is categorically stated that for Defence Aerodromes, the Defence Authorities shall be responsible for issuing 'No Objection Certificate' in accordance with the said Notification and subject to any other restrictions and conditions which such authorities deemed fit. Therefore, imposition of additional restrictions or conditions are necessary due to the nature of operations and traffic characteristics which are as under:
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(a) Operation of Single Engine Aircrafts:
(b) Single occupancy Cockpit and consequent High Cockpit workload;
(c) Very high rate of descent, Climb and Turn;
(d) Higher sped of operation including higher landing speed;
(e) formation flying;
(f) Low endurance flying;
(g) Low level flying requirement;
(h) Tactical combat training (sudden variations inaltitude and direction);
(i) Large number of Aircrafts launched and recovered within short durations;
79. The learned Senior Counsel further contended that the HAL Aerodrome is a Unique Defence Aerodrome in comparison to all other defence aerodromes for the following reasons:
(j) HAL is the sole premier Aircraft, Design and Manufacturing Organisation in the country 187 promoting a safe test flying environment which is critical for National Defence;
(k) Flying operations at HAL involve test flying of experimental, unproven, developmental Aeroplanes and Helicopters;
(l) Test flying of prototypes and pre-
production models;
(m) Special exercises are carried out such as "Practice Forced Landing",(PFL) which involves an unconventional approach to land;
(n) Carrying out Single Engine landing of a multi engine Aircraft for test purposes;
(o) Flying in poor weather conditions (low visibility);
(p) Switching off engines and re-ignition in mid-air;
(q) Post production Test flying.
188The nature of work stated supra carried out in HAL Aerodrome entail a high level risk and hence, safety margins from the obstacle on ground around the Airport are essential and therefore, additional restrictions are imposed such as, no violation of obstacle limitation surface shall be permitted under any circumstances as they are inviolable and non-negotiable and also as a corollary, no requests for Aeronautical studies in the event of a violation of the said surface shall be entertained.
80. The learned Senior Counsel for the HAL further contended that the Notification, Annexure-B dated 14.1.2010 issued by the Central Government in exercise of powers under the provisions of Section 9A of the Act is also not challenged by the petitioner. He would further contend that, International Standard and Aviation Practices issued by the International Civil Aviation Standards 2004 stipulates Annex-14 to the 189 Convention on the International Civil Aviation pertains to Civil Aviation and not for the Defence. Therefore, this Court cannot grant the relief sought in prayer No.2 in the present writ petition as this Court cannot legislate by granting such relief. He further contended that under Clause 5 of the Notification, Annexure-B dated 14.1.2010, the conduct of Aeronautical study stipulates only for civil airports and not for defence airports. He would further contend that the letter dated 6th September, 2011 issued by the Air Force Authority of India to the Vice President, Legal and Land Force - M/s. Shoba Developers is subject to issue of NOC for construction of Military Search.
81. Sri Ananth Mandagi, learned Senior Counsel for the Respondent No.1 - HAL contended that in paragraph-15 of the writ petition, the petitioner has stated that: "the matter was of a highly technical nature with there being very few persons having the specialized 190 knowledge and experience to effectively deal with the peculiar situation in the present case. It is relevant that the respondent is primarily a public sector undertaking carrying on manufacturing activity, and the responsibility to issue NOCs was entrusted to them very recently in 2010. Consequently, the officers of the respondent were themselves not completely sure of the conclusive way forward." Therefore, the respondent No.1 - HAL is not the competent authority to allow the petitioner to construct the buildings beyond the limits fixed by the Central Government under the provisions of Section 9A of the Aircraft Act as per Annexure-B - notification. The learned Senior Counsel for the 1st respondent-HAL would further contend that it is not the case of the petitioner in the entire pleadings of the writ petition that the petitioner has not violated the 'Undertaking' that was given by him at the time of obtaining 'No Objection Certificate' and he has not constructed building beyond 191 932 meters and NOC was wrongly withdrawn by the respondent. Therefore, the 1st prayer sought in the present writ petition to quash the letter dated 16.8.2013 issued by respondent vide Annexure-AQ canceling the NOC issued to the petitioner in respect of height clearance is just and proper and the petitioner has not stated as to what is the mistake committed by the respondent No.1 while withdrawing NOC. He would further contend that the 2nd prayer sought in the writ petition is to direct the respondent No.1 to permit the petitioner to construct up to the maximum height which does not adversely affect aircraft operations as may be determined in the aeronautical study to be conducted by the 1st respondent through AAI or ICAO or any other recognized agency and the said prayer cannot be granted as AAI or ICAO is not the authority under Section 9A of the Aircraft Act. He would further contend that in the entire writ petition, the petitioner has not stated regarding the maximum height which 192 does not adversely affect the aircraft operations and the maximum height that is allowed in law.
82. Sri Ananth Mandagi, learned Senior Counsel would further contend that the petitioner has deliberately produced a portion of Convention on International Civil Aviation as per Annexure-AZ instead of producing in full. As per Annexure-R16 produced along with statement of objections, Convention on International Civil Aviation was held at Chicago on 7.12.1944 and it pertains to civil airports, but not defence airports. In fact Section 4 of the Aircraft Act deals with Convention relating to International Civil Aviation held at Chicago. Annexure-AZ is Annex 14 to the Convention on International Civil Aviation and it pertains to only civil aviation and there was no need to produce the said document by the petitioner since the said document is not relevant for the present case. He would further contend that Article 3 of Annexure-R16 193 pertains to Civil and State aircrafts. As per Article 3(a) of the Convention, the Convention shall be applicable only to civil aircraft and is not applicable to state aircraft. As per Article 3(b) of the Convention, Aircraft used in military, customs and police services shall be deemed to be state aircraft. In fact, the heading of Article 3 of the Convention itself is "Civil and State aircrafts".
83. Sri Ananth Mandagi, learned Senior Counsel for Respondent No.1 would further contend that Annexure-BC is Air Traffic Management Circular issued by Airports Authority of India. Clause 4.1 of the said Circular specifies that the applicant shall submit the application for NOC on prescribed form (Appendix-1) and he should provide the exact location of the proposed construction on the grid map/zoning map of the concerned aerodrome along with the coordinates in WGS-84 system; The applicant shall be responsible for 194 the correctness and integrity of site data furnished in the application; The applicant shall also submit an undertaking to the effect that the data furnished in the application is correct in all respects and in case at any stage the data provided by the applicant is found to be incorrect, the NOC issued shall automatically stand cancelled. He further contended that on the revised undertaking affidavit filed by the petitioner on 3.10.2011 as per Annexure-H in the writ petition, the authorities issued 'No Objection Certificate' dated 28.10.2011 as per Annexure-A with certain conditions prescribing that the top of the proposed structure when erected shall not exceed 870 meters (site elevation) + 62 meters (Height of the structure) i.e., 932 meters AMSL (above mean sea level). Admittedly in the present case, the petitioner has constructed buildings to a height of 954 meters i.e., beyond the limit prescribed in the NOC given by the HAL. Therefore the impugned Annexure- AQ came to be issued on 16th August 2013 cancelling 195 NOC issued by HAL as per letter dated 28.10.2011 for height clearance.
84. Sri Ananth Mandagi, learned Senior Counsel for Respondent No.1 while referring to the Sketch - Annexure R15, contended that the existing building elevation as on the date of filing the writ petition was 954.41 meters AMSL and the maximum permissible level is 932 meters AMSL in terms of Annexure-B notification. The petitioner has made extra construction to an extent of 22.41 meters. He would further contend that 'No Objection Certificate' dated 28.10.2011 as per Annexure-A has been issued by the Chief Manager (Aerodrome), HAL Airport on the basis of the Undertaking given by the petitioner dated 03.10.2011. In the 'No Objection Certificate', it is specifically stated that the applicant(s) is/are advised in his/their own interest to verify the elevation and other data furnished for the site, before embarking on the proposed 196 construction. He would further contend that in paragraph-3 of Annexure-A it is stated that "If however, at any stage it is established that the said data as tendered by the applicant is actually different from one tendered and which could adversely affect aircraft operations ....." and the word 'and' used in Annexure-A should be read as 'or'. In support of his contention, he relied upon the Judgment of the Hon'ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED Vs. KIRUSA SOFTWARE PRIVATE LIMITED reported in (2017)11 SCALE 754, wherein the Hon'ble Supreme Court held at paragraph-29 as under:
29. It is, thus, clear that so far as an operational creditor is concerned, a demand notice of an unpaid operational debt or copy of an invoice demanding payment of the amount involved must be delivered in the prescribed form. The corporate debtor is then given a period of 10 days from the receipt of the 197 demand notice or copy of the invoice to bring to the notice of the operational creditor the existence of a dispute, if any. We have also seen the notes on clauses annexed to the Insolvency and Bankruptcy Bill of 2015, in which " the existence of a dispute" alone is mentioned. Even otherwise, the word "and" occurring in Section 8(2) (a) must be read as "or" keeping in mind the legislative intent and the fact that an anomalous situation would arise if it is not read as "or". If read as "and", disputes would only stave off the bankruptcy process if they are already pending in a suit or arbitration proceedings and not otherwise. This would lead to great hardship; in that a dispute may arise a few days before triggering of the insolvency process, in which case, though a dispute may exist, there is no time to approach either an arbitral tribunal or a court. Further, given the fact that long limitation periods are allowed, where disputes 198 may arise and do not reach an arbitral tribunal or a court for upto three years, such persons would be outside the purview of section 8(2) leading to bankruptcy proceedings commencing against them. Such an anomaly cannot possibly have been intended by the legislature nor has it so been intended.
85. Sri Ananth Mandagi, learned Senior Counsel for Respondent No.1 would further contend that at Clause-4 of the No Objection Certificate (Annexure-A), it is specified that the NOC issued is further subject to the provisions of Section 9A of the Aircraft Act, 1934 and those of any notifications issued thereunder from time to time and under which, the applicant may be called upon by the HAL Airport, Bangalore to demolish in whole or in part, the structure that is being authorized vide NOC. Therefore he contended that even assuming the petitioner constructed on par with the permission granted, still the authority has got power to call upon 199 the applicant to demolish in whole or part of the structure. Therefore it is not a right given for ever.
The NOC issued is subject to the conditions prevailing at that time. It may vary in future in terms of Section 9A of the Aircraft Act. He would further contend that the petitioner has not made out any case that either AAI or ICAO can execute aeronautical study in respect of the defence airports (HAL) and both the builder and buyer should be aware of the norms fixed by the Central Government in respect of the defence airports. Knowing fully well the norms fixed, the petitioner has exceeded beyond the NOC given and now he cannot seek for a mandamus directing the respondents to permit him to construct up to maximum height which does not adversely aircraft operations. He specifically pressed the words used in Annexure-A i.e., "NOC FOR HEIGHT CLEARNACE ONLY". Therefore the petitioner cannot make construction beyond the permissive level i.e., 932 Meters AMSL.
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86. Sri Ananth Mandagi, learned Senior Counsel for Respondent No.1 would further contend that the supplement to the Aeronautical Study on Gujarat International Financial Tech-city (GIFT) deals with policy matter that relates to aeronautical studies and the same was prepared by the International Civil Aviation Organisation. The policy in question relates to the recent changes in the obstacle limitation surfaces specified in Ministry of Civil Aviation Notification No. S.O. 1589 (E) dated 30th June 2008 as amended on 17th April 2009. In the said supplement, it is stated that a number of previous aeronautical studies undertaken by ICAO for AAI have stressed the need to preserve free of obstacles the airspace between the Annex 14 OLS (including the OHS) and the PANS-OPS obstacle clearance surfaces to cater for non-normal operations. This is because major accidents involving a relaxation of ICAO practices may have consequences which go beyond the 201 immediate casualties and damage, and raise wider public discussion. Accidents which involve large number of fatalities or casualties at schools, hospitals or high rise buildings (particularly if approved through an aeronautical study) would raise public concern. Cost benefit analysis cannot by itself address fully the concerns raised in such cases. Therefore, there are circumstances in which more stringent safety measures should be retained, even though they may not be directly cost-beneficial.
87. Sri Ananth Mandagi, learned Senior Counsel would further contend that in the letter dated 15.9.2012 (Annexure-N) addressed to the petitioner by the respondent, it is clearly stated that the NOC for height clearance of 62 Meters for the proposed building at the site in question was issued based on the express understanding that the site elevation is 870 meters AMSL as tendered by the petitioner was correct. It is 202 found that the elevation submitted by the petitioner (870 meters) vastly differs from the data available with the respondent and this may lead to reduction in the permissible height above ground level for the proposed building. Therefore the petitioner was advised to carry out a resurvey of the proposed site for the purpose of finding the elevation, in presence of HAL-NOC committee within 30 days. Sri Ananth Mandagi would further contend that as per Annexure - 'O' dated 19.2.2013, the respondent - HAL reminded the petitioner to carry out a resurvey of the proposed site for the purpose of finding the elevation, in the presence of HAL-NOC Committee.
88. Sri Ananth Mandagi, learned Senior Counsel further contended that in Annexure-R10 dated 15.9.2012 addressed to one Dr. C. Nanjunda Swamy, Professor and Head, Department of Civil Engineering, Dr. Ambedkar Institute of Technology, it is stated that 203 the NOC for height clearance of 62 meters for the proposed building at the site was issued by the HAL- NOC Committee, based on the Coordinates and Elevations of the site checked and verified by Dr. Ambedkar Institute of Technology. The same was enclosed along with the application for NOC by the petitioner. In Annexure-R10 dated 15.9.2012, the respondent - HAL has categorically stated with regard to resurvey of the site i.e, it is found that the elevation (870 meters AMSL) of the site certified vastly differs from the data available with the respondent - HAL, thereby advised to carry out a re-survey of the site and submit the report to the respondent - HAL within 15 days from the date of receipt of the letter. He further contended that either the petitioner or the authorities who have issued the height clearance certificate in favour of the petitioner did not come forward for joint survey or replied the notice. He would further contend that with regard to re-survey, reminder made by the 204 respondent to the petitioner is admitted by the petitioner in paragraphs 16 and 17 of the writ petition and there is no further averment with regard to the approach of the HAL for re-survey or with regard to the authorities who have issued height clearance certificate in the name of the petitioner. Therefore the contention of the petitioner that there was no opportunity provided to him before withdrawing NOC cannot be accepted.
89. Sri Ananth Mandagi, learned Senior Counsel for the 1st respondent contended that, on the basis of the complaint made by Respondent Nos.4 to 10 to the Ministry of Defence in respect of certain violations made by the petitioner, the 1st respondent verified from the survey map of India, Bengaluru district and declared that height of the land belonging to the petitioner at Koramangala is 892 meters AMSL. But the petitioner declared the height of their land in the application as 205 per Annexure - E1 at 870 meters AMSL. The Karnataka State Remote Sensing Applications Centre appointed at the instance of both the parties by this Court on 28.08.2013 submitted report as per Annexure-R6, which clearly depicts that the elevation is 892.33 mtr AMSL. Both the parties have not disputed the report filed by the Karnataka State Remote Sensing Applications Centre except the petitioner filing objections. As per the report, the co-ordinates of the Benchmark are as follows:
Location Latitude Longitude Elevation Id. AMSL (m) BM 12 55' 21.234" N 77 37'52.575" E 892.33 No.1124 Learned Senior Counsel for the 1st respondent further contended that at paragraphs 18 and 19 of the writ petition, it is stated that the petitioner was advised that in view of the structure having been completed up to 17 floors, an aeronautical study would be necessary to 206 conclusively determine the maximum permissible height which would not adversely affect aircraft operations, in accordance with the applicable criteria of Annex 14 of ICAO and as provided in S.O. 84(E). The opinion of one Mr.R.C.Khurana, the retired Executive Director, Airports Authority of India confirms that the height is restricted to 964 Meters AMSL. The petitioner's anxiety regarding air safety were justifiably alleviated after the findings of the ATM expert as set out in the ASR. The ASR confirmed that the existing structure upto 17 floors was below the said 964/957 Meters AMSL. The said averments made cannot be accepted, which are impermissible in view of Section 9A of the Aircrafts Act and the notification issued by the Central Government as per Annexure-B dated 14.01.2010 and the NOC given by the respondent in favour of the petitioner.
90. The learned Senior Counsel further contended that on 15.03.2013 the petitioner wrote a 207 letter (Annexure-P) to the 1st respondent and in the said letter, it is stated that the NOC application was considered and the height clearance upto 932 meters AMSL was recommended by NOC Committee of HAL and only thereafter the HAL has issued 'NOC for Height Clearance' of 932 meters AMSL i.e, 62 meters (height of the structure) and 870 meters (site elevation) in terms of NOC dated 28.10.2011. In the said letter it is also stated that BBMP had sanctioned plans for wings A to K upto 17 floors vide its order dated 24.02.2012 issued by the Joint Director, Town Planning, BBMP and further based on the NOC issued for 62 meters, they have constructed the building for the said height. Sri Ananth Mandagi, learned Senior Counsel further contended that the HAL issued notice dated 28.03.2013 (Annexure-R) to the petitioner for resurvey of the site and in the said notice it is specifically stated at paragraph 2 that no Surveyor or certifier is authorized by HAL-NOC Committee to survey or to certify the 208 location and elevation of a site. HAL-NOC committee has no role in surveying and verifying the elevation of a site. The said practice is being followed by Airports Authority of India (AAI) and the same is adopted by HAL. It is further stated in paragraph-3 of the said notice that though the NOC for 932 mtr was issued by HAL, it was found that the site elevation of 870M varying drastically from the elevations of nearby sites and landmarks and hence in the interest of Air safety, the petitioner was advised to carry out the resurvey of the site, to check the site elevation and ultimately advised to verify the site elevation and other data furnished for the site before embarking on the proposed construction, to avoid any possible violation of the permissible elevation of 932M in the future. The petitioner was also advised to carry out a resurvey of the site for the purpose of finding the elevation, in the presence of HAL-NOC Committee within 30 days after the receipt of the letter. The convenient date and time 209 may be mutually agreed upon with the 1st respondent -
HAL. He would further contend again one more letter dated 12.04.2013 (Annexure-S) was issued by the HAL to the same effect with regard to re-survey and as per Annexure-T, the petitioner addressed letter to the respondent and intimated that they along with ATM expert Mr. R.C. Khurana explained their view points in the meeting and substantiated the same with an Aeronautical Study report prepared by Mr.R.C. Khurana.
91. Learned Senior Counsel for the 1st respondent further contend that as per Annexure-U, the respondent addressed a letter to the petitioner and clarified that HAL airport pertains to Military and the study has not taken into consideration the requirement of low flying by fixed wing and rotary wing aircraft and the location of the site falls on the right base leg for runway 09 and due to peculiarity of Test flying the 210 maximum elevation of the building has been restricted to 932 meters. He further contended that as per Annexure-V dated 15.05.2013 once again the respondent requested the petitioner for measuring of site elevation by Survey of India and it is stated in the said document that the survey has to be done for at least four corners of the site and advised the petitioner to comply with the requirements of Survey of India. He further contended that as per Annexure-W dated 15.05.2013, the respondent addressed letter to the Director, Karnataka Geo-spatial Data Centre (KGDC) and requested to carry out survey of the site belonging to the petitioner and send one set of survey report to the respondent - HAL and the fees towards the survey of the site and the mode of payment be intimated to the respondent as well as petitioner. It is also contended that the respondent issued notice finally on 20.05.2013 to the petitioner as per Annexure-Z for suspension of construction work in the site advising the petitioner to 211 stop the construction of all the towers till the survey to find out the elevation of the site is carried out by Survey of India and the permissible Top Elevation at the site is arrived at, based on the survey report. Learned Senior Counsel for the 1st respondent further contended that very strangely the petitioner addressed a letter to the 1st respondent dated 24.05.2013 (Annexure-AA) that as required by the 1st respondent, they had approached the Survey of India office and have followed up with their letter dated 21.05.2013 requesting them to carry out the survey as desired by the 1st respondent and in the said letter, it is also stated that they have intimated the Airports Authority of India to carry out the Aeronautical Study on an urgent basis considering substantial completion of construction work on site. As per Annexure-AD dated 21.06.2013, the 1st respondent wrote a letter to the petitioner regarding survey of site, wherein it has sought information as to whether the survey of site has been carried out by Survey of India 212 and if so, the survey report shall be sent to the respondent at the earliest and if not alternatively, the petitioner may contact the Director, Karnataka State Remote Sensing Application Centre for carrying out the survey of site to avoid any delay.
92. Sri Ananth Mandagi, learned Senior Counsel further contended that as per Annexure-AE dated 02.07.2013, one more letter written by the 1st respondent to the petitioner regarding survey of site. As per Annexure-AG dated 12.07.2013, the petitioner wrote a letter to the Karnataka State Remote Sensing Application Centre and copy thereof to the respondent. As per the Court order dated 28.08.2013, the Karnataka State Remote Sensing Application Centre produced the report as per Annexure-R6, which clearly depicts that the elevation has to be only 892.33 meters. Very strangely the petitioner written one more letter to the Karnataka State Remote Sensing Application Centre as 213 per Annexure-AL dated 03.08.2013 for aeronautical study. The learned Senior Counsel for respondent No.1 further contended that, inspite of several opportunities given by the 1st respondent to the petitioner for survey of the site to know the height of the building, the petitioner has not availed opportunity and ultimately the 1st respondent has no option except to withdraw the No Objection Certificate on the ground that the petitioner has violated the conditions of NOC. Therefore the contention of the petitioner that no opportunity was given before canceling NOC dated 28.10.2011 issued by the HAL, cannot be accepted.
93. Sri Ananth Mandagi, learned senior counsel for 1st respondent - HAL contended that NOC has been issued in favour of the petitioner imposing certain conditions. He would further contend that in the reply by the 1st respondent - HAL as per Annexure- 'AO' to the petitioner's letter dated 3.8.2013 i.e., before 214 cancellation of the NOC, it is specifically stated that "The survey of site has nothing to do with Aeronautical study". In the reply, it is also stated that HAL has not advised the petitioner for any Aeronautical study and the Demand Draft submitted by the petitioner was also returned. He would further contend that in the impugned letter of cancellation of NOC as per Annexure-AQ dated 16th August 2013 at paragraph-4, it is specifically stated that in NOC, it was advised in the interest of the petitioner to verify the elevation and other data, before embarking on the construction. In paragraph-6 of the said letter dated 16.8.2013, it is specifically stated that: "if you want a fresh NOC, you are advised to apply for the same after getting the survey done by Karnataka State Remote Sensing Application Centre (KSRSAC) or Survey of India". He would further contend that in the objections filed by the 1st respondent - HAL in the present writ petition at paragraph-5, it is stated that imposition of additional 215 restrictions or conditions are necessary due to the nature of operations and traffic characteristics.
94. Sri Ananth Mandagi, learned Senior Counsel for the 1st respondent further contended that after receipt of the report from the concerned authority as per Annexure-BJ dated 3.9.2013, this Court by the order dated 23.10.2013 observed as under:
"The Court makes it clear that from this day onwards, the petitioner shall not modify/alter/renovate/develop the building construction in the property in question, above 40 meters from ground level. In other words, no further alterations shall be made to the existing building, above 40 mtrs.
The petitioner shall not sell or agree to sell or enter into an agreement with third parties in whatsoever manner in respect of any portion of the building, above 40 meters.216
The petitioner shall notify all the persons, who have already purchased or agreed to purchase the flats above 40 meters, about the pendency of this writ petition and that the sale of flats would be subject to the result of this writ petition. Petitioner shall also notify that such purchasers shall not claim equity based on purchases or agreements made by them.
It is needless to observe that the construction already made by the petitioner/portion of the building would be subject to the result of this writ petition."
The said order dated 23.10.2013 passed by this Court has become final and conclusive.
95. Sri Ananth Mandagi, learned Senior Counsel would further contend that this Court by the order dated 31.7.2014 (paragraphs 43 to 45) has permitted to conduct Aeronautical study. Subsequently, this Court 217 by the order dated 15.10.2014 clarified the said order. The said orders are subject matter of Writ Appeal No.2572/2014 before the Division Bench of this Court. The Division Bench dismissed the said Writ Appeal on 3rd September 2015. The relevant portion of the Judgment passed by the Division Bench in the said Writ Appeal is as under:
"5. The Hon'ble Single Judge, by the order impugned, directed the Airport Authority of India to process the application of the writ petitioner to conduct an aeronautical study of the Bengaluru (HAL) Aerodrome at the cost of the writ petitioner.
6. By the order impugned, no rights of the parties have been decided. The report that would be submitted before the Hon'ble Judge would be subject to the result of the writ petition.
7. Mr. Pradeep S. Sawkar, learned advocate, strenuously, submits that 218 once the notification has been issued under Section 9-A of the Aircrafts Act, 1934, it was impermissible to issue another aeronautical study. "
The said Judgment passed by the Division Bench of this Court has reached finality.
96. Sri Ananth Mandagi, learned Senior Counsel for the 1st respondent contended that the Aeronautical Study Report submitted in December - 2015 and paragraph-1.2 of the said report refers that the applicant has been granted an height of 932 meters AMSL and the Site Elevation Certificate issued by the Karnataka State Remote Sensing Application Centre has reported site elevation of 892.41 meters. In the same report at para-3.3 it is referred that the existing structure is penetrating the Inner Horizontal Surface and the study is being conducted to examine its impact on the safety and regularity of the aircraft operations. This aeronautical study is applicable for normal aircraft 219 operations only. ICAO in some Aeronautical Studies conducted for AAI, has opined the need to preserve (free of obstacles) the airspace between the Annex-14 OLS and the PANS-OPS (Procedural for Air Navigation Service) (Obstacle System Operations) surfaces to cater for non-normal operations. In the said report, he also refers to paragraphs-6.1 and 6.2, which read as under:
6.1 The Site has been marked in the AAI Zoning map of Bangalore and lies in Inner Horizontal (IHS) at a distance of 3376m from Rwy09 of Bangalore Airport.
Aerodrome Elevation of Bangalore
Airport:888.18m
Height of Inner Horizontal Surface
above the aerodrome elevation:45m
Admissible Top Elevation due due to OLS:-888.18M+45M=933.18m 6.2 Existing Structure of 954.41M AMSL (62M AGL+S.E.892.41M) will be penetrating the Inner Horizontal Surface 220 is to protect airspace for visual circling prior landing possibly after a descent through cloud aligned with a runway other than in use for landing. (ICAO DOC.9137 part 6) Penetration of OLS by the Structure may create collision hazard between the structure and aircraft. During Aeronautical study it is to be determined that the structure would not adversely affect the safety or significantly affect the regularity of aircraft operations.
Safety risk analysis needs to be carried out as indicated in the flow diagram (Source: A methodology to assess the safety of aircraft operations when aerodrome standards cannot be met by Hermut Fricke) during the normal and degraded mode of aircraft operations. Limitation of Study: Safety impact of allowing the OLS penetration on the aircraft operations in degraded performance mode, such as one engine failure during takeoff or landing, is not 221 analyzed as there was no laid down procedure for the same.
97. Sri Ananth Mandagi, learned Senior Counsel for the 1st respondent further contended that the as per the report, safety impact of allowing the OLS penetration on the aircraft operations in degraded performance mode, such as one engine failure during takeoff or landing, is not analyzed as there was no procedure laid down for the same. He would further contend that the HAL is the degraded airport and therefore aeronautical study is not applicable to the HAL. He also invited the attention of the Court to the conclusions of the report submitted by the AAI, which read as under:
9. Conclusions:
a) The existing structure for requested top elevation 954.41 Mts AMSL, penetrates the Inner Horizontal surface of Bangalore airport by margin 222 of 21.23M which exceeds the permissible height of 45M by 47.17%.
b) The desired height of 954.41m AMSL is within the maximum allowable penetration of OLS as per the Aeronautical Study guidelines.
c) The safety impact of the existing structure due to the degraded aircraft performance operations is not in the scope of this study.
d) The existing structure of 954.41m AMSL will not affect adversely the safety and regularity of aircraft from PANS-OPS criteria.
e) The existing structure of 954.41m AMSL will not adversely affect the performance of the CNS equipment.
f) Airport Operator should ensure that the applicant/owner/builder carryout marking and lighting of the structure as per DGCA CAR and the obstacle is published.
223
98. Sri Ananth Mandagi, learned Senior Counsel stressed his argument to para-9(b) of the report that the desired height of 954.41 meters AMSL is within maximum allowable penetration of OLS (Obstacle Limitation Surface) as per the Aeronautical Study guidelines. He would submit that the said guidelines apply only to civil airports. He would further contend that as per paragraph 9(c) of the said report, the safety impact of the existing structure due to the degraded aircraft performance operations is not in the scope of this study. He would further contend that the airport operator should ensure that the applicant/owner/builder carry out marking and lighting of the structure as per the DGCA (Director General of Civil Aviation) CAR (Civil Aviation Requirement) and the obstacle is published. The learned Senior Counsel for the 1st respondent would further contend that the restricted supplement to the report of the Gujarat International Financial Tech-City (GIFT) prescribes that 224 number of previous aeronautical studies undertaken by ICAO for AAI have stressed the need to preserve free of obstacles the airspace between the Annex 14 OLS (including the OHS) and the PANS-OPS obstacle clearance surfaces to cater for non-normal operations. This is because major accidents involving a relaxation of ICAO practices may have consequences which go beyond the immediate casualties and damage, and raise wider public discussion. Accidents which involve large number of fatalities or casualties at schools, hospitals or high rise buildings raised in such cases. Thus there are circumstances in which more stringent safety measures should be retained, even though they may not be directly cost-beneficial. He would further contend that the ICAO report on the Aeronautical Study of obstacles for Gujarat International Financial Tech-City has given a charitable interpretation to the amendment of 17th April 2009 by considering the new 300 mts. outer horizontal surface as an upper limit on any NOC 225 issued by AAI, and recommended the 150 mts. surface be re-identified as the OHS. This was charitable in that it has overlooked the interpretation placed on it by the Times of India, in which it was hailed as a gift to property developers. It is clear that this later interpretation is one that appears the more likely one to be used by individuals and agencies unaware of the concept of non normal operations and societal risk. Therefore he submits that the very report submitted by the respondent pertains to civil airports only.
99. Sri Ananth Mandagi, learned Senior Counsel for the 1st respondent further draws the attention to the terms of the memo dated 12.7.2018 filed by the 1st respondent and the guidelines for Aeronautical Study, wherein at para-1.5 and 1.6 it is stated as under:
1.5 Objective of regulating the build environment around airport is to protect obstacle limitation surfaces of the airport so that Safety, Efficiency and 226 Regularity of flight operations are maintained and also to prevent the aerodrome from becoming unusable by the growth of obstacles.
1.6 Applicants, who are not satisfied with the height granted by the NOC office, may appeal to the Chairman, Appellate Committee, Ministry of Civil Aviation, RAjiv Gandhi Bhawan Safadarjung airport, New Delhi-110003 for seeking redressal.
Sri Ananth Mandagi, learned Senior Counsel further contended that the Scope of Aeronautical Study is stated at para-4 of the Guidelines, which reads as under:
" 4. SCOPE OF AERONAUTICAL STUDY 4.1 An existing or proposed structure, penetrating or expected to penetrate the obstacle limitation surface as detailed in ICAO Annex 14, resulting in deviation from the Standards, is presumed to be a 227 hazard to air navigation unless the Aeronautical Study determines that safety and regularity of aircraft operations is not adversely affected during the normal aircraft operations.
4.2 An Aeronautical study must identify the effects of the proposed structure:
4.2.1.On the existing and the proposed instrument flight procedures, PBN procedures, departure & arrival procedures, and the minimum flight altitudes of the air-routes, OCA, MSA and Radar Vectoring Altitudes, during normal aircraft operations.
4.2.2 Regarding physical,
electromagnetic, or line-of-sight
interference on the existing and
the proposed, Communications,
Navigation and Surveillance (CNS) facilities.
228
4.2.3 Whether marking and/or
lighting of the structure is
necessary.
4.3 However, safety impact on the
aircraft operations in degraded
operational performance mode is not analysed."
100. Sri Ananth Mandagi, learned Senior Counsel for Respondent No.1 contended that under Article 1.8 of the Guidelines for Aeronautical Study, it is stated that the Appellate Committee, after considering the request of the applicant for carrying out the Aeronautical Study, may order for an Aeronautical Study. He further contended that in the objections filed by Respondent No.1 to the Aeronautical Study report submitted by Airports Authority of India, it is contended that disputed facts and hyper-technical issues cannot be decided in the writ petition. Therefore, he sought to dismiss the writ petition. 229
101. In support of his contentions, Sri Ananth Mandagi, learned Senior Counsel for Respondent No.1 relied upon the following judgments:
i) Shristi Infrastructure Development Corporation Limited & others -vs- Union of India & others -
W.P. No.7652/2015 dated 24th June, 2015, which was case identical to the present case wherein the very impugned notification dated 14.1.2010 was challenged.
ii) Tahsildar, Taluk Office, Tanjore and others -vs-
Thambidurai and another reported in 2017 SAR (Civil) 800
iii) P. Radhakrishna Naidu -vs- Governmetn of Andhra Pradesh and others reported in (1977)1 SCC 561 (paragraph 24)
iv) State of Bihar -vs- Jain Plastics and Chemicals Ltd., reported in (2002)1 SCC 216 (Paragraph-7)
v) New Okhla Industrial Development Authority vs. Kendriya Karamchari Sahkari Grih Nirman Samiti 230 reported in (2006)9 SCC 524 .. (paragraphs 11 and
12)
vi) State of U.P -vs- Lakshmi Sugar & Oil Mills Ltd., reported in (2013)10 SCC 509 .. (paragraph-18)
vii) Prestige lights Ltd., -vs- State Bank of India reported in (2007)8 SCC 449.. paragraphs 33, 35 and 36.
viii) Bhaurao Dagudu Paralkar -vs- State of Maharashtra reported in (2005)7 SCC 605 - (paragraphs 9, 11 and 12)
ix) T. Vijendradas and another -vs- M. Subramanian reported in (2007)8 SCC 751 . (paragraphs 18,19, 27 and 28)
x) Indian Bank -vs- Satyam Fibres (India) Private Limited reported in (1996)5 SCC 550
xi) Amresh Tiwari -vs- Lalta Prasad Dubey reported in (2004)4 SCC 449; and
xii) Chameli Singh -vs- State of U.P. reported in (1996)2 SCC 549 (paragraph 18)
xiii) Mobilox Innovations Private Limited vs. Kirusa Software Private Limited reported in (2017)11 SCALE 754 231
xiv) Yeshwanth Shenoy and others -vs- Union of India and others in PIL No.86/2014 and connected matters decided on 1st September 2016 (paragraphs 3 and 4) VI. Arguments advanced by Sri Aditya Sondhi, Learned Senior Counsel for Respondent nos.4 to 10
102. Sri Aditya Sondhi, learned Senior Counsel for Respondent Nos.4 to 10 contended that at the instance of Respondent Nos.4 to 10, the 1st respondent
- HAL has initiated the proceedings and cancelled the NOC and the same is in accordance with law. The Respondent Nos.4 to 10 are neighbours of the petitioner's building, who will be affected directly, if any mishaps happen. He would further contend that in Annexure-R2 issued by the Koramangala Infrastructure Task Force dated 1.8.2013 addressed to the Defence Ministry produced along with the impleading application, a reference is made to the illegal structures put up by the petitioner. He further contended that 232 the provisions of Section 9A of the Aircrafts Act contains the word 'prohibit' and therefore, what was permitted was only 932 meters. After noticing the illegal constructions beyond 932 meters, HAL issued so many notices and ultimately cancelled the NOC. Admittedly, construction put up as on the date of the cancellation was about 954 meters. He would further contend that the report submitted by the AAI is not applicable to the defence airports. He would further contend that the paragraph 3.3 of the aeronautical study report relates to 'assessment criteria', wherein it is stated that "the existing structure is penetrating the inner horizontal surface and study being conducted to examine its impact on the safety and regularity of the aircraft operations". This aeronautical study is applicable for normal aircraft operations only. Therefore, he submits that the said report is not applicable to the defence airports and HAL aircraft is 233 degraded aircraft performances. Therefore, the report is not applicable.
103. He further contended that in Annexure - R3 issued by the Assistant General Manager, Airport Authority of India to the Vice-President, Legal and Land Affairs, M/s Shobha Developers, it is stated that HAL Airport, Bangalore is listed in the defence aerodrome list in SO 84(E) dated 14.1.2010. Hence, the same cannot be reviewed by the Airports Authority of India. The aeronautical study conducted by AAI is in respect of civil airports only and HAL is the defence Airport. He would further contend that Annexure - B9 produced along with the objections and the opinion of the Air Marshal Philip Rajkumar depicts that the nature of operations being non-standard test flying, it is imperative that the inner horizontal surface specified under Section 9A of the Aircraft Act, 1934 be maintained clear in perpetuity of any structure, which 234 exceeds the laid down height restriction of 45 meters above the height of airfield reference point (887 meters) i.e., 887 + 45 = 932 meters AMSL. It is also stated that this measure will ensure the safety of aircraft undertaking test flights and citizens living in the vicinity of the airport. Finally, he contended that inspite of granting NOC with specific conditions for building construction, the petitioner constructed in violation of the NOC conditions. Therefore, the HAL rightly cancelled the NOC and illegal unauthorized construction has to be demolished. Therefore, he sought to dismiss the writ petition.
104. In support of his arguments, Sri Adithya Sondhi, learned Senior Counsel for Respondent Nos. 4 to 10 relied upon the following judgments:
1. Union of India and others vs. Asian Food Industries -
(2006)13 SCC 542 (paragraph-43)
2. Esha Ekta Apartments Cooperative Housing Society Limited and others vs. Municipal Corporation of 235 Mumbai and others - (2013)5 SCC 357 (paragraphs 2, 4, 5 and 56. ) VII. Points for determination:
105. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for determination in the present writ petition are:
(i) Whether the 1st respondent-HAL is justified in canceling the NOC in respect of the entire building including permissive limit height of 62 mtrs + 870 = 932 mtrs (17 floors) ignoring the affidavit of undertaking filed by the petitioner dated 03.10.2011, Annexure-
H1 and the No Objection Certificate issued by the HAL NOC Committee dated 28.10.2011, Annexure-A, without any resurvey of the site property of the petitioner in question?
(ii) Whether the petitioner has made out a case to refer the dispute for the Aeronautical Study by the AAI or any 236 authorized agency, in the facts and circumstances of the present case?
VIII Consideration
106. I have given my thoughtful consideration to the arguments advanced by the learned Senior Counsel for the parties and perused the entire material on record, carefully.
107. It is the specific case of the petitioner that the petitioner is the owner of the site property in dispute and is interested in constructing a large residential complex comprising of 2 basement, ground and 17 floors in multiple wings. Accordingly, approached the 1st respondent-HAL for issuance of NOC. The 1st respondent-HAL NOC Committee, considering the entire material, by the letter dated 28.10.2011, has given the No Objection for construction of the proposed building with a height of 62 mtrs i.e., 932 mtr AMSL and said NOC was issued with the approval of the competent 237 authority with certain conditions and after obtaining necessary sanction modified plans from the jurisdictional authorities. The petitioner commenced and carried out the construction of I phase comprising of 5 wings (B to F) and completed upto 17th floor as long back as in June to September 2012 and finishing works are under progress. Phase II comprises of 6 wings (A, G, H, J, K and proposed wing L. Wing A was completed upto the 15th floor. Wing G is completed upto the 13th floor, wing H is completed upto 12th floor and wing J is completed upto 11th floor. The floors referred are the upper floors. The petitioner has spent more than Rs.400 crores and out of the total number of the proposed 289 flats in 10 wings, 202 flats have been booked by flat purchasers. 102 flats are on the 11th to 17th floors in the 10th wing, out of which 70 flats have been booked by various purchasers. When things stood thus, HAL has cancelled the NOC without verifying the 238 documents and without giving an opportunity of being heard.
108. It is the specific case of the 1st respondent- HAL that the petitioner has proceeded to construct the building contrary to the conditions of NOC issued and in violation of the provisions of Section 9A of the Aircraft Act, 1934. Though NOC granted to the petitioner specifies that the building shall not exceed 932 mtr AMSL, the petitioner proceeded to construct 954 mtr AMSL, i.e., 22 mtr more than the height permitted by the HAL NOC Committee. Therefore, the NOC has been cancelled by the HAL.
109. In view of the controversy, it is profitable to refer to the condition Nos.2 and 3 of the NOC dated 28.10.2011, which reads as under:
"2. This Office has no objection to the construction of the proposed Residential Building by M/s Chalet Hotels Ltd., herein after referred to as 239 the applicant(s) at location, Sy.No. 21, 22, 42, 52 and 1B, Koramangala Industrial Layout, Jakkasandra Villager, BBMP Ward No.68, Bangalore, (Coord: Latitude N12˚55'38.28 Longitude E077˚37'55.74') to height 62 Mts. (Sixty Two Meters only) ABOVE GROUND LEVEL, so that the top of the proposed structure when erected shall not exceed 870 Mts (site elevation) + 62 Mts (height of the structure) i.e., 932 Mts.AMSL (ABOVE MEAN SEA LEVEL).
3. This No Objection Certificate is being issued on the express understanding that the sitte-elevation reduced level (height above mean sea level) vis. 870Mts AMSL relative location of the proposed building/structure and its distances and bearings from the ARP, Runway ends as tendered by the applicant(s) are correct. If however at any stage it is established that the said data as tendered by the said applicant is actually different from one tendered 240 and which could adversely affect aircraft operations, the structure of part(s) thereof in respect of which this No Objection Certificate is being issued will have to be demolished at his own cost as may be directed by HAL Airport, Bangalore. The applicant(s) is/are therefore advised in his/their own interest to verify the elevation and other data furnished for the site, before embarking on the proposed construction."
A careful reading of the said conditions makes it clear that the HAL has no objection for the construction proposed by the petitioner in the properties Latitude N12"55'38.28 Longitude E077"37'55.74' to height 62 Mts. (Sixty Two Meters only) ABOVE GROUND LEVEL, so that the top of the proposed structure when erected shall not exceed 870 Mts (site elevation) + 62 Mts (height of the structure) i.e., 932 Mts.AMSL (ABOVE MEAN SEA LEVEL). If however, at any stage, it is 241 established that the said data as tendered by the petitioner is actually different from one tendered and which could adversely affect aircraft operations, the structure of part(s) thereof in respect of which this No Objection Certificate is being issued will have to be demolished at the cost of the petitioner as may be directed by HAL Airport, Bangalore, and therefore, it was advised that the petitioner shall verify the elevation and other data furnished for the site, before embarking on the proposed construction. Paragraph-8 of the No Objection Certificate dated 28.10.2011 clearly states that, day and night markings with the secondary power supply may be provided as per ICAO standards.
"NOC FOR HEIGHT CLEARANCE ONLY"
It is also specifies that the certificate is issued with the approval of the competent authority. 242
IX. Provisions of Aircraft Act and Rules relied upon
110. In view of the controversy, it is relevant to refer to the provisions of the Aircraft Act, 1934.
Section 2(1) defines that "aircraft" means any machine which can derive support in the atmosphere from reaction 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;
Section 2(2) defines that "aerodrome" means any definite or limited ground or water area intended to be used, either wholly or in part, for the landing or departure of aircraft, and includes all buildings, sheds, vessels, piers and other structures thereon or appertaining thereto;
Section 2(A) defines that "aerodrome reference point" in relation to any aerodrome, means a designated 243 point established in the horizontal place at or near the geometric centre of that part of the aerodrome reserved for the departure or landing of aircraft.
The provisions of Section 5 refers to the Power of Central Government to make rules, and reads as under:-
Power of Central Government to make rules.
(1) [Subject to the provisions of section 14, the Central Government] may, by notification in the Official Gazette, make rules regulating the manufacture, possession, use, operation, sale, import or export of any aircraft or class of aircraft 2[and for securing the safety of aircraft operations.] (2) Without prejudice to the generality of the foregoing power, such rules may provide for--
(a) the authorities by which any of the powers conferred by or under this Act are to be exercised;244
[(aa) the regulation of air transport services,and the prohibition of the use of aircraft in such services except under the authority of and in accordance with a licenceauthorising the establishment of the service;
[(ab) the economic regulation of civil aviation and air transport services, including the approval, disapproval 5[or revision on tariff of operators of air transport services [other than the tariff referred to to in clause (a) of sub-section (1) of section 13 of the Airports Economics Regulatory Authority of India Act, 2008]] or revision of tariff of operators of air transport services; 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 245 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 the rates, terms and conditions of commission payable to passenger or cargo sales agents;] [(ac) the information to be furnished by an applicant for, or the holder of, a licence authorising the establishment of an air transport service to such authorities as may be specified in the rules;] [(b) the licensing, inspection and regulation of aerodromes, the conditions under which aerodromes may be maintained and the prohibition or regulation of the use of unlicensed aerodromes;
(ba) the fees which may be charged at those aerodromes to which the Airports Authority of India Act, 1994(55 of 1994) does not apply or is not made applicable;] 246
(c) the inspection and control of the manufacture, repair and maintenance of aircraft and of places where aircraft are being manufactured, repaired or kept;
(d) the registration and marking of aircraft;
(e) the conditions under which aircraft may be flown, or may carry passengers, mails or goods; or may be used for industrial purposes and the certificates, licences or documents to be carried by aircraft;
(f) the inspection of aircraft for the purpose of enforcing the provisions of this Act and the rules thereunder, and the facilities to be provided for such inspection;
(g) the licensing of persons employed in the operation, manufacture, repair or maintenance of aircraft;
[(ga) the licensing of persons engaged in air traffic control;
(gb) the certification, inspection and regulation of communication, navigation and surveillance or air traffic management facilities;
247(gc) the measures to safeguard civil aviation against acts of unlawful interference;]
(h) the air-routes by which and, the conditions under which aircraft may enter or leave [India], or may fly over 8[India], and the places at which aircraft shall land;
(i) the prohibition of flight by aircraft over any specified area, either absolutely or at specified times, or subject to specified conditions and exceptions;
(j) the supply, supervision and control of air-route beacons, aerodrome lights, and lights at or in the neighbourhood of aerodromes or on or in the neighbourhood of air-routes;
[(jj) the installation and maintenance of lights on private property in the neighbourhood of aerodromes or on or in the neighbourhood of air-routes, by the owners or occupiers of such property, the payment by the Central Government for such installation and maintenance, 248 and the supervision and control of such installation and maintenance, including the right of access to the property for such purposes;]
(k) the signals to be used for purposes of communication by or to aircraft and the apparatus to be employed in signaling;
(l) the prohibition and regulation of the carriage in aircraft of any specified article or substance;
(m) the measures to be taken and the equipment to be carried for the purpose of ensuring the safety of life;
(n) the issue and maintenance of log-books; .
(o) the manner and conditions of the issue or renewal of any licence or certificate under the Act or the rules, the examinations and tests to be undergone in connection therewith, the form, custody, production, endorsement, cancellation, suspension or surrender of such licence or certificate, or of any log-book;
(p) the fees to be charged in connection with any inspection, examination, test, certificate or licence, made, issued or renewed under this Act; 249
(q) the recognition for the purposes of this Act of licences and certificates issued elsewhere than in 11[India] relating to aircraft or to the qualifications of persons employed in the operation, manufacture, repair or maintenance of aircraft;
[(qq) the prohibition of slaughtering and flaying of animals and of depositing rubbish, filth and other polluted and obnoxious matter within a radius of ten kilometers from the aerodrome reference point; and]
(r) any matter subsidiary or incidental to the matters referred to in this sub-section.
111. The provisions of Section 6 refers to the Power of Central Government to make orders in emergency, and reads as under-
Power of Central Government to make orders in emergency.
(1) If the Central Government is of opinion that in the interest of the public 250 safety or tranquility the issue of all or any of the following orders is expedient, it may, by notification in the Official Gazette,--
(a) cancel or suspend, either absolutely or subject to such conditions as it may think fit to specify in the order, all or any licences or certificates issued under this Act;
(b) prohibit, either absolutely or subject to such conditions as it may think fit to specify in the order, or regulate in such manner as may be contained in the order, the flight of all or any aircraft or class of aircraft over the whole or any portion of 1[India];
(c) prohibit, either absolutely, or conditionally, or regulate the erection, maintenance or use of any aerodrome, aircraft factory, flying-school or club, or place where aircraft are manufactured, repaired or kept, or any class or description thereof; and 251
(d) direct that any aircraft or class of aircraft or any aerodrome, aircraft factory, flying-school or club, or place where aircraft are manufactured, repaired or kept, together with any machinery, plant, material or things used for the operation, manufacture, repair or maintenance of aircraft shall be delivered, either forthwith or within a specified time, to such authority and in such manner as it may specify in the order, to be at the disposal of Government for the public service.
[(1A) Any order made under sub-section (1) shall have effect notwithstanding anything inconsistent therewith contained in any rule made under this Act.] (2) Any person who suffers direct injury or loss by reason of any order made under clause (c) or clause (d) of sub-
section (1) shall be paid such compensation as may be determined by 252 such authority as the Central Government may appoint in this behalf.
(3) The Central Government may authorise such steps to be taken to secure compliance with any order made under sub-section (1) as appear to it to be necessary.
(4) Whoever knowingly disobeys, or fails to comply with, or does any act in contravention of, an order made under sub-section (1) shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both, and the Court by which he is convicted may direct that the aircraft or thing (if any) in respect of which the offence has been committed, or any part of such thing, shall be forfeited to Government.
112. The provisions of Section 9A refers to Power of Central Government to prohibit or regulate 253 construction of buildings, planting of trees, etc., as under-
[9A. Power of Central Government to prohibit or regulate construction of buildings, planting of trees, etc. -- (1) If the Central Government is of opinion that it is necessary or expedient so to do for the safety of aircraft operations, it may, by notification in the Official Gazette,--
(i) direct that no building or
structure shall be constructed or
erected, or no tree shall be
planted on any land within such
radius, not exceeding twenty
kilometers from the aerodrome
reference point, as may be
specified in the notification and
where there is any building,
structure or tree on such land,
also direct the owner or the
person having control of such
building, structure or tree to
254
demolish such building or
structure or, as the case may be,
to cut such tree within such period
as may be specified in the
notification;
(ii) direct that no building or
structure higher than such height
as may be specified in the
notification shall be constructed or erected, or no tree, which is likely to grow or ordinarily grows higher than such height as may be specified in the notification, shall be planted, on any land within such radius, not exceeding twenty kilometers from the aerodrome reference point, as may be specified in the notification and where the height of any building or structure or tree on such land is higher than the specified height, also direct the owner or the person having control of such building, structure or tree to 255 reduce the height thereof so as not to exceed the specified height, within such period as may be specified in the notification.
(2) In specifying the radius under clause
(i) or clause (ii) of sub-section (1) and in specifying the height of any building, structure or tree under the said clause
(ii), the Central Government shall have regard to--
(a) the nature of the aircraft
operated or intended to be
operated in the aerodrome; and
(b) the international standards
and recommended practices
governing the operation of aircraft. (3) Where any notification has been issued under sub-section (1) directing the owner or the person having control of any building, structure or tree to demolish such building or structure or to cut such tree or to reduce the height of 256 any building, structure or tree, a copy of the notification containing such direction shall be served on the owner or the person having the control of the building, structure or tree, as the case maybe, --
(i) by delivering or tendering it to such owner or person; or
(ii) if it cannot be so delivered or tendered, by delivering or tendering it to any officer of such owner or person or any adult male member of the family of such owner or person or by affixing a copy thereof on the outer door or on some conspicuous part of the premises in which such owner or person is known to have last resided or carried on business or personally worked for gain; or failing service by these means;
(iii) by post.
257
(4) Every person shall be bound to comply with any direction contained in any notification issued under sub-
section (1).] A careful reading of the said provisions makes it clear that, no building or structure shall be constructed or erected, or no tree shall be planted on any land within such radius, not exceeding twenty kilometers from the aerodrome reference point, as may be specified in the notification and where there is any building, structure or tree on such land, also direct the owner or the person having control of such building, structure or tree to demolish the same within the period specified in the notification; and no building or structure specified in the notification shall be constructed or erected, or no tree, which is likely to grow or ordinarily grows higher than the point specified in the notification shall be planted in any land within such radius , not exceeding twenty kilometers from the aerodrome reference point, 258 as specified in the notification and where the height of any building or structure or tree on such land is higher than the specified height, the owner be directed to reduce the height of the building or tree so as not to exceed the specified height, within such period specified in the notification.
Sub Section (2) of Section 9A of the Act envisages that, in specifying the radius and the height of any building, structure or tree, under clauses (i) and (ii) of sub Section (1) of Section 9A, the Central Government shall have regard to the nature of the aircraft operated or intended to be operated in the aerodrome and the international standards and recommended practices governing the operation of aircraft. Sub Section (3) of Section 9A of the Act envisages that, where any notification has been issued under sub-Section (1) directing the owner or the person having control of any building, structure or tree to demolish such building or 259 structure or to cut such tree or to reduce the height of any building, structure or tree, a copy of the notification containing such direction shall be served on the owner or person having control of the building, structure or tree, by delivering or tendering it to such owner or person, or if it cannot be so delivered or tendered, a copy thereof shall be affixed on the outer door or on some conspicuous part of the premises and by post and that every person shall be bound to comply with such direction contained in any notification issued under sub Section (1) of Section 9A.
113. The provisions of Section 11B refers to Penalty for failure to comply with directions issued under Section 9A, which reads as under:
[11B. Penalty for failure to comply with directions issued under section 9A.-- (1) If any person wilfully fails to comply with any direction contained in any notification issued under section 260 9A, he shall be punishable with imprisonment for a term which may extend to [two years, or with fine which may extend to ten lakh rupees], or with both.
(2) Without prejudice to the provisions of sub-section (1), if any person fails to demolish any building or structure or cut any tree or fails to reduce the height of any building, structure or tree in pursuance of any direction contained in any notification issued under sub-
section (1) of section 9Awithin the period specified in the notification, then, subject to such rules as the Central Government may make in this behalf, it shall be competent for any officer authorised by the Central Government in this behalf to demolish such building or structure or cut such tree or reduce the height of such building, structure or tree:] 261 [Provided that the power to make rules under this sub-section shall be subject to the provisions of section 14.]
114. The provisions of Sub Rule (1C) of Rule 3 of the Aircraft Rules, 1937 defines that 'air traffic' means, all aircraft in flight or operating on the manoeuvring area of an aerodrome.
Sub Rule (1D) of Rule 3 defines that 'Air Traffic Controller' means a person on duty in an air traffic services unit and entrusted with the task of giving instructions, clearance or advice to aircraft by approved means of communication in the interest of safety of aircraft operations.
Sub Rule (2) of Rule 3 defines that 'Aerodrome' means any definite or limited ground or water area intended to be used, either wholly or in part, for the landing or departure of aircraft, and includes all 262 buildings, sheds, vessels, piers and other structures thereon or appertaining thereto.
Sub Rule (4A) of Rule 3 defines that 'Aeronautical beacon' means an aeronautical ground light visible at all azimuth either continuously or intermittently to designate a particular point on the surface of the earth.
Sub Rule (4B) of Rule 3 defines that 'Aeronautical ground light' means any light provided as an aid to air navigation other than a light displayed on an aircraft.
Sub Rule (5) of Rule 3 defines that 'Aeroplane' means a power-driven heavier-than-air aircraft, deriving its lift in flight chiefly from aerodynamic reactions on surfaces which remain fixed under given conditions of flight.
Sub Rule (13A) of Rule 3 defines that 'convention' means the convention relating to International Civil 263 Aviation signed at Chicago on the 7th day of December, 1944, as amended from time to time.
Sub Rule (17A) of Rule 3 defines that 'Defence Aerodrome' means an aerodrome owned and operated by Indian Air Force, Indian Navy or Indian Army.
Sub Rule (27) of Rule 3 defines that 'Government aerodrome' means an aerodrome which is maintained by or on behalf of the Central Government and includes an airport to which the Airports Authority of India Act, 1994 (55 of 1994) applies or is made applicable.
Sub Rule (33) of Rule 3 defines that 'landing area' means that part of an aerodrome reserved for the departure or landing of aircraft.
Sub Rule (34A) of Rule 3 defines that 'Manoeuvring area' means that area of an aerodrome which is to be used for the take-off and landing of an 264 aircraft and for the movement of aircraft associated with the take-off and landing.
Sub Rule (35A) of Rule 3 defines that 'Movement Area' means the area of an aerodrome which is intended for the surface movement of an aircraft and includes the manoeuvring area and aprons.
Sub Rule (48A) of Rule 3 defines that 'safety' means the state in which the risk of harm to persons or of property damage is reduced to and maintained at or below an acceptable level of safety through a continuing process of hazard identification and risk management.
Sub Rule (48B) of Rule 3 defines that 'safety oversight function' means a function by means of which the safety-related standards and recommended practices and associated procedures contained in the Annexes to the Convention are implemented. 265 A careful reading of the provisions of the Aircraft Act, 1934 and the Aircraft Rules, 1937, referred to above, clearly indicates that a person who obtains NOC from the HAL NOC Committee for construction, has to follow the procedures and conditions imposed therein and should not dilute the same.
115. According to the petitioner, he has not violated any of the terms and conditions of the NOC. But according to the respondent No.1, the petitioner has violated the conditions of NOC and sought resurvey of site and cancelled the NOC to the entire building instead of restricting the cancellation of NOC to the unauthorized construction made beyond the permissive limit granted under the NOC. A careful reading of Annexure-AQ, Cancellation of No Objection Certificate for height clearance, dated 16.08.2013, depicts as to what is the basis for the first respondent to come to the conclusion that the petitioner has violated condition 266 No.3 and 4 of the NOC dated 28.10.2011 and has not recorded any finding with regard to violation and how the construction would affect the aircraft operations as per condition No.3 already stated supra, that at any stage, if it is established that the data tendered by the applicant is actually different from one tendered and which could adversely affect aircraft operations, the structure of part(s) thereof in respect of which NOC is issued will have to be demolished. It only refers to the fact that, during a random check, the site elevations were compared with that given in the Survey of India (SOI) maps. It was observed that the declared elevation of 870 mtrs AMSL for the site varies significantly, i.e., actual elevation could be as high as 890 mtrs AMSL. It is also not in dispute that the petitioner has not challenged the NOC for height clearance of 62 mtr Above Ground Level/932 mtrs AMSL in the site property in question. According to the petitioner, he has not violated the terms and conditions of NOC and he has 267 taken a specific contention with regard to construction of the building blocks 'A' to 'L' and taken a specific contention in the grounds, at paragraphs 66, 73, 75, 80 and 83 of the memorandum of writ petition, which reads as under:
"66. No power exists in either the Aircraft Act or the Rules or in the NOC authorizing the 1st respondent to cancel the NOC. Further, nearly two years have lapsed from the date of issue of the NOC and that being the case, it would be wholly inequitable for the respondent to cancel the same after the petitioner has acted upon the said NOC and has spent enormous amounts of money and major portion of construction upto 17 floors has been completed since long, and after purchasers have booked the flats and paid monies for the same by themselves or through bank loans.
73. The respondent has failed to notice that the delay in conducting 268 detailed survey and the aeronautical studies have been only because of the dithering stand of the respondent who has on the one breath asked the petitioner to go ahead with the survey and aeronautical study and in the other breath have not cooperated with the petitioner in getting the same done. The AAI has written to the respondent and indicated its willingness to conduct an aeronautical survey. The petitioner even sent a demand draft favouring the AAI covering the fees prescribed for the study. Despite the same, the respondent has not at all cooperated in getting the aeronautical study done.
75. The respondent has sought to cancel the NOC without giving an opportunity of hearing to the petitioner and in this regard, there have been gross errors of principles of natural justice.269
80. The respondent being issued the NOC and the BBMP having sanctioned the plan based on such NOC, and based on which the petitioner having constructed the complex by expending huge sums of money, the respondent are estopped from canceling the NOC and sanction plan.
83. The respondent has erred in limiting the construction in the said property to only 932 mts AMSL, when in fact the ASR would indicate that the height at which the aircraft operations would not get affected is 964 mts. There is absolutely no justification for the height of 932 mts when the petitioner is actually entitled to construct to the full height of 964 mts., which would not adversely affect aircraft operations."
Even in the order of cancellation of NOC as per Annexure-AQ dated 16.08.2013, at paragraph-7, it is stated that, 'if the petitioners wants a fresh NOC, he is 270 advised to apply for the same after getting the survey done by Karnataka State Remote Sensing Application Centre (KSRSAC) or Survey of India'. Therefore, it is clear that the HAL is not sure about the alleged violation by the petitioner and no material is produced before this Court to establish that the construction made is contrary to the data tendered by the petitioner and which could adversely affect aircraft operations or the structures of part(s) thereof in respect of which the NOC is issued.
116. This Court, in the present writ petition, by the Order dated 31.07.2014, while granting interim Order, held that, 'in the circumstances, no injustice will be caused to the first respondent if directed to request AAI to process petitioner's application to conduct an aeronautical study of the Bengaluru (HAL) Aerodrome at the cost of the petitioner, after due process, in compliance with clause-5 of Annexure II to the 271 notification, Annexure-B'. The said Order was subsequently modified by the Order dated 05.11.2015 to the effect that, 'the aeronautical study of Bengaluru (HAL) Aerodrome is for the purpose of ascertaining as to whether or not the building constructed or to be constructed to the height of 62 meters above the ground level of property in question in accordance with notified parameters and Annexure-B to the petition for HAL Airport would affect (safety) of the Airport operations'. The said Order was subject matter of Appeal in W.A.No.2572 of 2014 and the Division Bench of this Court, by the Order dated 03.09.2015, at paragraphs 5, 6, 7, 8, 9, 10, 11 and 12, held as under:
"5. The Hon'ble Single Judge, by the Order impugned, directed the Airport Authority of India to process the application of the writ petitioner to conduct an aeronautical study of the Bengaluru (HAL) Aerodrome at the cost of the writ petitioner.272
6. By the order impugned, no rights of the parties have been decided. The report that would be submitted before the Hon'ble Single Judge would be subject to the result of the writ petition.
7. Mr.Pradeep S. Sawkar, learned advocate, strenuously, submits that once the notification has been issued under Section 9-A of the Aircrafts Act, 1934, it was impermissible to issue another aeronautical study.
8. We are not concerned with the issue at this stage inasmuch as the Hon'ble Single Judge has not decided any point for consideration; His Lordship only directed an aeronautical study. We do not know what shall be the report.
9. We, therefore, decide not to interfere with the order impugned as nothing has been decided between the parties.
10. The writ appeal is, therefore, dismissed.273
11. We, however, request the Hon'ble Single Judge to expedite the hearing of the writ petition as far as possible and to decide the matter uninfluenced by the observations made in the order impugned.
12. We express no opinion on the merits of the case."
This would clearly indicate that the Division Bench has held that the learned single Judge has not decided the rights of the parties and report would be submitted before the learned single Judge and that would be subject to the result of the writ petition and directed the learned single Judge to expedite the writ petition.
117. In pursuance of the order passed by the learned single Judge, the HAL submitted the report in the month of December 2015 and at paragraph-9 has come to the conclusion as under:
274
"9.Conclusions:
a) The existing structure, for requested top elevation 954.41mtr AMSL, penetrates the Inner Horizontal surface of Bangalore airport by margin of 21.23 M which exceeds the permissible height of 45M by 47.17%.
b) The desired height of 954.41m AMSL is within the maximum allowable penetration of OLS as per the Aeronautical Study guidelines.
c) The Safety impact of the existing structure due to the degraded aircraft performance operations is not in the scope of this study.
d) The existing structure of 954.41m AMSL will not affect adversely the safety and regularity of aircraft from PANS-OPS criteria.
e) The existing structure of 954.41m AMSL will not adversely affect the performance of the CNS equipment.
275
f) Airport Operator should ensure that the applicant/owner/builder carry out marking and lighting of the structure as per the DGCA CAR and the obstacle is published."
It is relevant to state at this stage that in the writ petition filed by the Airport Authority of India Employees Union vs. the Union of India and others in W.P.No.11486/2008 (GM-PIL), the HAL filed affidavit of one Mr.Rajender Sharma, working as Head, Airport Service Centre, HAL, Bengaluru Complex, Bengaluru, dated 04.07.2015, wherein at paragraphs 6 and 7, it is stated as under:
"6. I state presently HAL airport being used only for military flying, test flights, chartered and VVIP flights. HAL airport continues to operate 24 x 7 to support these flights without any downgrade in the infrastructure and services provided, which are presently under utilized considering the volume of 276 aircraft movement handled earlier. HAL airport also supports Test flying and experimental flying pertaining to Aeronautical Development Agency (ADA), Aircraft Systems Test Measurement (ASTE), National Aeronautical Laboratory (NAL), Centre for Airborne Systems (CABS) and it also provides support for proving out new systems/UAVs (Unmanned Arial Vehicles) which involves very complex navigation.
7. I state it is pertinent to mention here that separation standards prescribed fin ICAO (International Civil Aviation Organization) documents and DGCA Guidelines are strictly adhered by HAL ATC for both civil and military aircraft movement at all times. The safety measures for all the flights whether it is defence or civil flights is one and the same and the facilities which are extended cannot be distinguished between Civil Flights as well as Defence Flights."277
118. It is also pertinent to note the relevant clauses of the procedure for issue of NOC for height clearance by HAL, which reads as under:
"2.1 The Indian Aircraft Act, 1934 Section 9A empowers the Central Government to restrict the construction of buildings and other structures within a radius of 20 kms of an aerodrome. The current gazette notification on the subject is Government of India, Ministry of Civil Aviation Notification S.O.84(E) dated 14th January 2010. The criterial employed in this notification are based on Obstacle Limitation Surfaces as discussed in ICAO Annex 14, and other ICAO documents such as Annex 10 and Doc 8168.
5.9 All the cases will be decided in
accordance with the provision of
Government of India Gazette and
additional restrictions imposed by HAL authorities. At present, there are three additional restrictions/conditions imposed 278 by HAL, to facilitate special test flying at low level. This is a deviation from S.O.84(E):
(i) Maximum permissible elevation within a radius of 20 km from Aerodrome Reference Point (ARP) of HAL Airport:
1037M AMSL (150M above Aerodrome Elevation of HAL Airport 887M AMSL) instead of 1187 M AMSL (300 M above Aerodrome Elevation of HAL Airport as per S.O.84(E).
(ii) Criteria for the structures which
do not constitute "Large Objects"
mentioned in para 2.5 and 2.6 of
S.O.84(E) are not to be implemented.
(iii) Aeronautical study for permitting more height is not applicable."
In response to the directions issued by the HAL for the revised proposal, the petitioner filed an undertaking dated 03.10.2011 wherein, at paragraph-3, the 279 petitioner has specifically undertaken that, "No radio/ television/microwave/telecom aerial mast, lightning arrestors, staircase room, lift machine room, vent pipes, overhead water tanks and attachments or super structures of any description will project above 932.00 mtrs of the structures which are not indicated in the submitted drawings. Based on such an undertaking, the HAL issued NOC dated 28.10.2011, with certain conditions.
119. It is the specific case of the petitioner that based on the HAL's - NOC Committee permission for construction of building to a height of 62 meters and as per the BBMP sanction plan for construction the building of 17 floors i.e., 62 meters has been constructed and not 954 meters as alleged, and it has not constructed more than 62 meters (17 floors) above the ground level as permitted under the NOC. The height of the existing building is in terms of the NOC 280 permitted height is 62 meters above ground level and not 62 meters + 22 meters as alleged by the 1st respondent. It is the further case of the petitioner that though it had applied for sanction of NOC by the letter dated 21.9.2011 to construct a structure of 110 meters, upto 25 floors and an affidavit of undertaking was also filed in Form No.1A dated 19.9.2011 wherein at para-3 of the affidavit it has specifically stated that no structure will project above 980 meters of the structure which are not indicated in the submitted drawings, the HAL by a letter dated 28.9.2011 had directed the petitioner to file a revised application for NOC reducing the height and to file an affidavit to the effect that 'the Height Clearance upto restricted height of 62 meters above ground level/932 meters AMSL is recommended by NOC Committee and it was required to submit the revised undertaking (Form 1A) and building plans showing sanction/revised elevations/site location plans (i.e., for the reduced structure height of 62 meters) as 281 per the drawings showing the height/floors for NOC applications. Accordingly, the petitioner by the letter dated 3.10.2011 applied for height clearance of 62 meters as recommended with the revised drawing for 62 meters 17 floors and revised Undertaking. In para-3 of the revised undertaking, it has been specifically stated that no structure will 'project above 932.00 meters of the structure which are indicated in the submitted drawings'. Accordingly, the HAL considering the revised application with sanctioned plan and revised undertaking filed, has issued NOC dated 28.10.2011 for a height upto 62 meters. According to the petitioner, construction of the structure is to an height of 62 meters (17 floors) as permitted under the HAL-NOC Committee and sanctioned plan by BBMP. Therefore, there is no difference in height permitted by the HAL- NOC Committee and no extra/illegal construction in violation of NOC/Undertaking made by the petitioner. 282
120. It is also not in dispute that the 1st respondent is aware of the discrepancy being inadvertent error by Precision Surveys, whose site elevation certificates have been regularly accepted by the HAL. As can be seen from Annexure-BQ, commencing from 8.11.2010 to 30.6.2011 about 36 sample certificates have been issued by Precision Surveys and accepted by HAL for issuing height NOCs. The same is admitted by the HAL in the reply to the rejoinder statement of the petitioner in the present writ petition. At para-7, it is stated that 'the Gazette Notification dated 14.1.2010 as well as Annex-14 of the ICAO Guidelines are consistent with each other in as much as the Inner Horizontal Surface is the surface which extends to 45 meters above an Aerodrome and its environs measured from a Reference Point established for the said purpose and no fixed objects shall be permitted above the said surface. In the instant case, the construction site of the petitioner is within the Inner 283 Horizontal Surface and therefore, the proposed structure cannot exceed the said surface i.e., 45 meters from the Aerodrome Reference Point i.e., 887 meters.' In para-20 of the said rejoinder, it is specifically stated by the HAL that 'it is true that elevation certificates of M/s Precision Surveys have been accepted by the respondent in the past, however, there was no discrepancy or difference in the data furnished therein.' It is also admitted by the HAL in the affidavit dated 16.10.2017 filed by Sri Rajender Sharma, Additional General Manager (Civil Helicopter), who has duly sworn to, wherein at para-4 he has stated that in respect of a few other NOCs when the discrepancy regarding site elevation was notified, the original NOC issued on the basis of incorrect site elevation was treated as null and void and the Builders/Developers were directed to apply afresh after resurvey of the property and accordingly, fresh NOCs have been issued to those applicants, who conducted a re-survey in accordance with the 284 stipulations prescribed in the Notification dated 14.1.2010.
121. In identical circumstances, the Co-ordinate Bench of Delhi High Court in the case of KGA INVESTMENTS -VS- UNION OF INDIA AND OTHERS in W.P.(C) 9509/2018 AND C.M.NO.38741/2018 D.D.20.11.2018 has held as under:
"Apparently, the Municipal Corporation had also issued certificates with regard to the height of the site elevation in respect of various sites, which were now found to be inaccurate. This issue was discussed at a joint meeting held between the representatives of the AAI, the Municipal Corporation and MIAL on 10.10.2017. At the said meeting, it was decided that the list of such buildings would be prepared by the Municipal Corporation and that list would be provided to the AAI. AAI in turn would send the list to the concerned authority with a request to 285 conduct Aerodrome Study without issuing orders for demolition of the excess height."
122. It is also not in dispute that the respondent- HAL on 15.9.2012 had directed the M/s. Precision Surveys (India) Private Ltd., for resurvey of the site located at Sy.Nos.21, 22, 42, 52 and 1B, Koramangala Industrial Layout, Jakkasandra Village, BBMP Ward No.68, Bangalore (petitioner property) specifically stating that the NOC for height clearance of 62 Meters for the proposed building at the above mentioned site was issued by HAL-NOC-Committee, based on the Coordinates and Elevations of the site, checked and verified by it. However, it was found that the elevation (870M AMSL) of the site surveyed by it vastly differed from the data available with them. Hence, it was advised to carry out a resurvey of the site and submit a report to the undersigned, within 15 days after the receipt of that letter. Similar reminders were also 286 issued to that effect and ultimately, the HAL by a reminder dated 19.2.2013 to the M/s. Precision Surveys (India) Private Ltd., at para-4 specifically stated that 'However, no letter was received from you till date. Hence, you are reminded to do the resurvey and submit the report within 15 days from the receipt of this letter.' It is also not in dispute that 1st respondent has neither filed any counter nor denied or disputed the documents or statements of M/s Precision Surveys regarding inadvertent error committed by the said Survey Authority which clearly indicates that the difference is not on account of excess construction of a permitted 62 meters building, but it seems to be due to the difference in site elevation as earlier arrived at by Precision Surveys and later arrived at by KSRSAC. Admittedly in the present case, the height of the NOC issued by the Committee on the basis of the Site Elevation data provided to the petitioner, Municipal Corporation has 287 sanctioned building plans based on and for height permitted under the NOC; Structure constructed as per the height permitted under the NOC; Discovery of variation in site elevation after completion of construction; Discrepancy due to site elevation certificate issued by the third party i.e., Corporation, was later found to be 'inaccurate'; the difference of survey conducted by the two survey authorities in site elevation has resulted in a difference of the derived top elevation of the constructed structure.
123. It is the specific case of the 1st respondent- HAL that for granting the prayer sought in the present writ petition, the petitioner has not made out any legally and statutorily enforceable right and therefore, no relief can be granted under Article 226 of the Constitution of India for doing something which is not provided under the height regulations and therefore, the writ is not maintainable. It is not in dispute that the 1st 288 respondent HAL has issued NOC for construction of building upto 62 meters. If on the difference of opinion by two survey authorities, it has come to the conclusion that due to the difference in site elevation the 1st respondent cannot cancel and withdraw the NOC, de- regularizing the entire permitted existing 62 meters structure, if for any reason, the petitioner has violated the conditions of NOC and constructed the above permissive limit of 62 meters, in terms and conditions of NOC, there is no requirement for the petitioner to apply for fresh NOC. It has to be ascertained onlyafter resurvey done by the competent survey authorities. After verification in terms of the Regulations of HAL, if procedure permits, it can apply for NOC and the construction, if made above permissible limit in terms of NOC, what is the extent it has constructed beyond permissive limit and whether it adversely affects the aircraft operations, has to be verified. If, however, it is established based on the material documents that the 289 data tendered by the applicant is actually different from the one tendered which would adversely affect the aircraft operations, the structure of parts thereof in respect of which this 'NOC' is being issued will have to be demolished at his own costs and not the entire building (permitting existing 62 meters structure). Ultimately, after conducting resurvey, if the petitioner has constructed structure beyond permission granted by the NOC Committee and prohibits further construction beyond 62 meters, then necessary action has to be taken with regard to unauthorized construction in accordance with the provisions of Section 9A of the Act and Rules 3 and 6 of the Aircraft (Demolition of Obstructions caused by Buildings and Trees, etc) Rules,1994 and in accordance with law, if the structure would affect the aircraft operations.
124. The 1st respondent ignoring NOC conditions and regulations as stated in reply dated 5.10.2013 to 290 the rejoinder of the statement of the petitioner has stated that there is no requirement in law to establish as to which portion of the structure would affect Aircraft Operations once it has been established that the said structure penetrates over and above Obstacle Limitation Surface which clearly indicates that the HAL has ignored its own terms and conditions of NOC and Regulations. Therefore, the said contention cannot be accepted. The authority, who issued NOC before cancellation should act based on the established material documents on record whether the construction is beyond permissive limit and whether it affects the Aircraft Operations. Without ascertaining or establishing which portion of the construction would actually affect the Aircraft Operations, withdrawal of entire NOC including the permitted construction cannot be sustained and the petitioner in the present writ petition cannot seek regularization of illegal structure, if any. The entire case of the petitioner is the protection 291 of a structure constructed within the permissive limit in terms and conditions of NOC issued and it is not the case of the 1st respondent that the permissive limit of construction under 'NOC' issued in favour of the petitioner would adversely affect the aircraft operations. In view of the above, the 2nd relief sought for, in the present writ petition for a writ of mandamus seeking regularization of unauthorized construction, if any, is not maintainable. It is for the concerned competent authority to resurvey the site elevation to verify the illegal construction, if made, by the petitioner.
125. It is also relevant to state that the 1st respondent- HAL has not produced any material as to how the permitted 62 meters construction would adversely affect the Aircraft Operations inspite of the report submitted by the AAI confirming that 62 meters structure with top elevation of 954 meters AMSL, does not adversely affect aircraft operations and is within the 292 permissible limits. Though the order passed by the learned Single Judge directing the AAI to submit a report was the subject matter of writ appeal and the Division Bench of this Court has not expressed any opinion on merits and has not interfered with the orders passed by the learned Single Judge directing the AAI to submit a report, admittedly, the report submitted by the AAI is not at all challenged by the 1st respondent. But the fact of granting NOC for construction of the building with an height of 62 meters above ground level, so that the top of the proposed structure when erected shall not exceed 870m (site elevation) + 62m i.e, 932 meters AMSL as per Annexure-A and the Notification dated 14.01.2010 fixing the parameters by the Central Government as per Annexure-B, is not challenged by the petitioner. Of course as stated above, the Division Bench has observed that the report of AAI is subject to the result of the present writ petition. Therefore, it is necessary to consider, whether the 1st respondent-HAL 293 is justified in canceling the NOC for the entire 62 meters (17 floors) ignoring its own NOC recommendation and undertaking of the petitioner.
126. It is relevant to state at this stage that Seven Experts have given their opinions confirming the safety of Aeronautical Study in the present case which are as under:
I. Mr. Ramesh Chander Khurana, Aviation Consultant (Annexure-AV), dated 18.9.2013:
Supplementary Report "1. x x x x
2. x x x x
3. Aeronautical Study as provided in Cl.5 - Ann.II of the Notification No.S.O.84(E) dated 14.1.2010 read with Cl.4.2.20 and 4.2.21 of Annex 14 of ICAO, is the only method to ascertain if (and to what extent) the height of a building could adversely affect aircraft operations. The Aeronautical Study is done 294 by taking into consideration procedures and other information published in the Aeronautical Information Publication of India. Presently in India, only the Airport Authority of India has the expertise to carry out the Aeronautical Study to determine whether and to what extent an existing structure above the prescribed level, could adversely affect the aircraft operations.
II Mr. H.S. Khola, Ex. Director General of Civil Aviation (DGCA) on 20th September, 2013 with regard to aeronautical study by AAI dated 20th September, 2013 has opined that Annexure-IIIC of the Notification SO 84(E) dated 14th January, 2010 issued by the Ministry of Civil Aviation clearly indicates the list of Civil and Defence Aerodromes which includes Bengaluru (HAL) Aerodrome at Sr.No.5. With regard to the method to ascertain if an object would adversely affect safety of aircraft operations, it is pertinent to refer to provisions of paragraph numbers 4.2.20 and 4.2.21 of ICAO Annex 14.
Annex 14 provides that the aeronautical study is method to determine the effect of an object on safety or regularity of 295 operations and the Airports Authority of India and ICAO are the competent agencies for conducting aeronautical studies. III Mr. Rajkumar, Joint General Manager (ATM-NOC) of AAI;
IV Mr. Pan Singh, General Manager (CNS-COM);
and V Mr. L.Mohanty, Joint General Manager (ATM-IAL) who carried out aeronautical study as Officers of AAI have come to the conclusion as under:
9. Conclusions:
a) The existing structure, for requested top elevation 954.41mtr AMSL, penetrates the Inner Horizontal surface of Bangalore airport by margin of 21.23 M which exceeds the permissible height of 45M by 47.17%.
b) The desired height of 954.41m AMSL is within the maximum allowable 296 penetration of OLS as per the Aeronautical Study guidelines.
c) The Safety impact of the existing structure due to the degraded aircraft performance operations is not in the scope of this study.
d) The existing structure of 954.41m AMSL will not affect adversely the safety and regularity of aircraft from PANS-OPS criteria.
e) The existing structure of 954.41m AMSL will not adversely affect the performance of the CNS equipment.
f) Airport Operator should ensure that the applicant/owner/builder carry out marking and lighting of the structure as per the DGCA CAR and the obstacle is published.
VI Mr. V. Somasundaram, Senior Independent Expert, Former Member (ANS),AAI and VII Mr. Satendra Singh Senior Independent Expert and Former DGCA who dealt 297 with each and every objections raised by HAL have opined as per Annexure-CL at para-3 as under:
"3. Conclusions:
The Aeronautical Study conducted by AAI pursuant to the direction of the Hon'ble High Court for the structure constructed and to be constructed by CHPL, is in accordance with the notified parameters for HAL airport and the notifications issued under Section 9A of the Aircraft Act, 1934 [i.e., S.O.84(E) dated 14.1.2010 and G.S.R.751 dated 30.9.2015 which has superseded S.O.84(E)].
The Aeronautical Study conducted by AAI has concluded that the structure height fo 954.41 mtrs. AMSL is permissible and would not adversely affect aircraft operations.
In our opinion, the objections
raised by HAL would not affect the
298
outcome of the Aeronautical Study
Report of AAI.
127. The International standards and
recommended practices governing the operation of Aircraft are issued under Section 9A (2)(b) of the Act. Annex-14 to the Convention on International Civil Aviation - provisions of ICAO are applicable in respect of height around airports including recommendation of 4.2.16 read with Table-4 read with 4.2.20 and 4.2.21 for precision approach runways like HAL aerodrome, as under:
"4.2.16: The heights and slopes of the surfaces shall not be greater than, and their other dimensions not less than, those specified in Table 4-1, except in the case of the horizontal section of the approach surface.
4.2.20: Recommendation:- New objects or extensions of existing objects should not be permitted above the conical surface and the inner horizontal surface except when, in the opinion of the appropriate authority, an 299 object would be shielded by an existing immovable object, or after aeronautical study it is determined that the object would not adversely affect the safety or significantly affect the regularity of operations of aeroplanes.
4.2.21: Recommendation:- Existing objects above an approach surface, a transitional surface, the conical surface and inner horizontal surface should as far as practicable be removed except when, in the opinion of the appropriate authority, an object is shielded by an existing immovable object, or after aeronautical study it is determined that the object would not adversely affect the safety or significantly affect the regularity of operations of aeroplanes."
Thus the ICAO criteria specifically provides for an height of 45 meters in the 4 kilometers radius inner horizontal surface and higher above that if aeronautical study determines that the existing or new structures will not adversely affect the aircraft operations. 300 Therefore, the ICAO criteria under the provisions of Section 9A(1)(ii) of the Aircraft Act is mandatory. The words under Section 9A of the Act depicts that the Government 'shall have' in Section 9A(2)(b) indicates ICA0 recommendations as a mandatory requirement and consequently while publishing notifications pursuant to Section 9A , the Government has to include and has included all the aforesaid ICAO Annex-14 Recommendations to calculate the height or permissible elevations in the Notification stated supra. So also in the NOC issued by the 1st respondent HAL dated 28.10.2011 at paragraph-8 it is specifically stated that Day and Night markings with the secondary power supply may be provided as per ICAO standards.
128. It is relevant to state at this stage that the affidavit dated 4.7.2015 filed by the Rajendra Sharma, who was Head of Airport Service Centre, HAL in W.P.No.11486/2008 (GM)(PIL) between Airport 301 Authority of India -vs- Union of India and Others has specifically stated at paragraph-7 that "the separation standards prescribed in ICAO (international Civil Aviation Organisation) documents and DGCA Guidelines are strictly adhered by HAL ATC for both civil and military aircraft movement at all times. The Safety measures for all the flights whether it is Defence or Civil Flights is one and the same and the facilities which are extended cannot be distinguished between Civil Flights as well as Defence Flights. Therefore, the contention raised by the learned Counsel for the 1st respondent that ICAO is applicable only to Civil Airports and not to Defence Airports including HAL cannot be accepted.
129. It is an undisputed fact that Hindustan Aeronautics Limited (HAL), which is established in the year 1964 is engaged in design, testing, manufacture and maintenance of aerospace/defence equipment and 302 it operated HAL Airport for commercial and defence purposes with average 360 aircraft movements daily, till closure of civil/commercial operations on 23.5.2008 due to BIAL starting operations. Capacity of the airport was 30 aircraft movements/hour and the terminal had handled 10.2 million passengers in the year before the closure and managed 60,000 tons of cargo during the year 2007-08. HAL airport continues to be used for defence/general aviation purposes, military, test, chartered & VVIP flights as is admitted by the HAL in the affidavit filed before this Court dated 4.7.2015 in Writ Petition No.11486/2008 (GM-PIL) filed by the Airport Authority of India Employees Union against Union of India and others. The Central Government issued Notification No.S.O. 1589(E) dated 30.6.2008 exercising the powers under the provisions of Section 9A of the Aircraft Act, 1934 providing for heights of buildings around airports. Paragraph-3 of the said notification clearly depicts that Airport 303 Authority of India shall be responsible for issuing the NOC on behalf of the Central Government for any construction in respect of all civil aerodromes in India, including the State Government aerodromes and the private aerodromes where civil commercial flights have been operating and listed at Annexure VII. For military aerodromes, defence authorities shall be responsible for issue of NOC. Defence authorities shall follow the guidelines as specified in this notification in addition to any other additional restriction as deemed fit for issue of NOC. The defence aerodromes listed in Part-I of Annexure - III. HAL Airport is listed in Part-III of Annexure-VII as 'privately owned licensed aerodrome'. Accordingly, AAI was responsible to issue NOC for HAL Airport which is indicated at serial No.4 in the said Annexure.
130. It is also not in dispute that the Government of India, Ministry of Civil Aviation issued notification dated 14th January 2010 in S.O. 84(E) 304 exercising the powers under the provisions of Section 9-A of the Aircraft Act and in supersession of the Notification No.S.O. 1589(E) dated 30.6.2008, being of the opinion that it is necessary and expedient so to do for the safety of aircraft operations.
Clause-1 of the above notification clearly depicts that no building or structure shall be constructed or erected and no tree shall be planted on any land within the limits specified in Annexure I and II from Civil and Defence Aerodromes and Aeronautical communication stations listed in Annexure-IIIA, IIIB, IIIC, IIID and IIIE without obtaining 'No Objection Certificate'.
Clause-2 of the above notification clearly depicts that for defence aerodromes, defence authorities shall be responsible for issuing NOC in accordance with this notification and subject to any other restriction or condition which such authorities deemed fit for issuing the NOC. It is also not in dispute that the 1st 305 respondent has accepted the site elevation certificate of precision Surveys Private Limited for issuing NOCs (about 36 NOCs. are issued as per Annexure-BQ).
List of defence aerodromes are listed in Annexure- IIIC and serial No.5 of the said annexure indicates 'Bengaluru (HAL) - Karnataka - 888 - Runway Orientation 9/27 - Dimension - 3306 x 45". AAI guidelines provide for applicant's responsibility for accuracy of site location coordinates. AAI Circulars relating to procedure for issue of NOC, mandate the site elevation and location to be verified by the authority.
131. As per clause 4.6 of the Air Traffic Management Circular ('ATMC' for short) No.4/2010 dated 20.7.2010, the site shall be plotted on the grid map/zoning map of the aerodrome and the calculations for the permitted height made from the Annex 14 as well as CNS criteria and thereafter, the case will be put 306 before the Committee to permit the proper examination in which PANS-OPS criteria shall also be considered. Clause 4.11 of the said Circular stipulates that RED/APD may constitute a Committee at Regional/Station Level for verification of proposed site. Clause 4.12 of the said Circular stipulates that Regional/Station Level NOC Committee shall be competent to issue NOC for permissible heights, in all cases, both within the applicable Obstacles Limitation Surfaces (OLS) as well as beyond the limits of OLS.
As per Clause 4.7 of the ATMC Circular No.6/2012 dated 1.8.2012, the site plotted on the grid map/zoning map of the aerodrome or on a map of suitably large scale and the site plotted by NOCAS (No Objection Certificate Application System) for calculation of the permitted height needs to be checked for accuracy and thereafter, the case will be put before the Committee to permit the proper examination in which PANS-OPS criteria shall also be considered. Clause 307 4.10 of the said Circular stipulates that RED/APD may constitute a Committee at Regional/Station Level for verification of proposed site with respect to site elevation and location.
As per Clause 4.7 of the ATMC Circular No.2/2013 dated 4.1.2013, the online 'NOCAS (No Objection Certificate Application System)' for buildings and masts height clearances is accessible from AAI website www.aai.aero for submission of NOC application online. With this system, applicants will not only be able to apply online but also will be able to track the status of their applications. After submission of the online application, the applicant will take the print out of the application and forward the same to nearest airport along with the requisite hard copies of documents.
Clause 4.13 of the ATMC Circular No.2/2013 stipulates that the site plotted on the grid map/zoning 308 map of the aerodrome or on a map of suitably large scale and the site plotted by NOCAS for calculation of the permitted height needs to be checked for accuracy and thereafter, the case will be put before the Committee to permit the proper examination in which PANS-OPS criteria shall also be considered. Clause 4.16 of the said Circular stipulates that RED/APD may constitute a Committee at Regional/Station Level for verification of proposed site with respect to site elevation and location.
132. A careful perusal of ATMC Circulars stated supra clearly indicate that before issuing NOC, it is mandatory on the part of the 1st respondent that the site plotted by NOCAS (No Objection Certificate Application System) for calculation of the permitted height needs to be checked for accuracy and thereafter, the case will be put before the Committee to permit the proper examination in which PANS-OPS criteria shall also be considered. Admittedly, it is not the case of 309 the 1st respondent - HAL that before issuing the NOC in the month of October 2011, it has checked the accuracy of the permission sought for by the petitioner in the application and granted NOC. There is no reference in the impugned order (Annexure-AQ) relating to 'cancellation of NOC for height clearance' that the 1st respondent has checked for accuracy and issued NOC and thereafter the petitioner has changed. It is only stated in the impugned order that during a random check, the site elevations were compared with that given in the Survey of India (SOI) maps and it was observed that the declared elevation of 870 meters AMSL for the site in question varies significantly i.e., actual elevation could be as high as 890 meters AMSL. The cancellation order only stated that the petitioner has not properly verified the elevation and other data before embarking on the construction. The same cannot be accepted. As per the guidelines and Circulars issued by the AAI stated supra, it is mandate 310 on the part of the competent authority to verify the location and the site elevation and other data and check for its accuracy. The same has been admitted by the 1st respondent by the letter dated 28.03.2013 that "the 1st respondent-Committee did not verify the site elevation from the co-ordinates certified by the surveyor/BBMP by comparing with them with the site elevation given in the survey of India maps". Therefore on that ground alone, the impugned cancellation order cancelling NOC issued by the 1st respondent - HAL for height clearance of the entire building including for the permitted height of 62 meters of the structure (i.e., 932 meters AMSL) cannot be sustained.
133. The 1st respondent though issued NOC on 28.10.2011, checked for accuracy of the site elevation of the petitioner only on 15.9.2012 as per their advisory letter i.e., nearly after one year. By that time, the petitioner has constructed the building up to 17 floors 311 as alleged. It is not in dispute that the 1st respondent for the first time issued advisory letter dated 15.9.2012 and stated that the elevation of 870 Meters differs from the data available with the 1st respondent - HAL and advised the petitioner to carry out re-survey of the proposed site for the purpose of finding the elevation, in presence of the HAL - NOC Committee within 30 days from the date of receipt of letter. The advisory letters as per Annexures - N, O, S, U, X, AE and AH clearly indicate that the 1st respondent requested the petitioner to conduct re-survey of the site and submit the report. In all the advisory letters issued by the 1st respondent, it is not the case of the 1st respondent that after receipt of the application from the petitioner for construction of the building, the competent authority has verified the location and site elevation and checked for its accuracy before the same was placed before the 1st respondent's NOC Committee to permit the proper examination and to issue NOC. In order to verify 312 whether the petitioner has violated the terms and conditions of the NOC and whether the 1st respondent has issued NOC after following the guidelines in terms of the Circulars issued by the AAI stated supra, no records have been placed before the Court by the 1st respondent. The 1st respondent in the statement of objections filed in the present writ petition has admitted that it has issued NOC purely on the basis of the material provided by the petitioner in respect of the elevation of the sital area of 870 mtr AMSL and it did not conduct any independent survey of the site of the petitioner. In the absence of the same, the cancellation of the NOC to the entire building including the construction made within the permissive limit, is erroneous and contrary to law.
134. The categorical stand taken by the 1st respondent in the advisory letters dated 15.9.2012 to 27.7.2013 clearly depict that the 1st respondent has 313 disputed the information furnished by the petitioner with regard to elevation of the site. It was also advised in categorical terms by the 1st respondent in the advisory letters directing the petitioner to expedite the coordination process with Karnataka State Remote Sensing Application Centre (KSRSAC), Bengaluru and to carry out the survey of the site at the earliest. The 1st respondent-HAL also requested the Director, KSRSAC, Bengaluru to give priority to carry out the survey of the site mentioned and even in the impugned cancellation order, it is specifically stated that opportunity provided to the petitioner was not utilized in getting re-survey done from KSRSAC and also given an option that if the petitioner wants fresh NOC, he was advised to apply for the same after getting survey done by the KSRSAC or Survey of India. According to the petitioner, he made construction within the permissive height of 62 meters above the ground level, so that the top of the erected structure shall not exceed 314 932 meters AMSL {870 meters (site elevation) + 62 meters (height of the structure)}. The same is disputed by the 1st respondent and according to the 1st respondent, the elevation of 870 meters mentioned by the petitioner is not accurate and varies from the data available with the 1st respondent. Therefore, in the interest of air safety and also to have authentic survey by the Government agency or KSRSAC, advised the petitioner to re-survey the site to dispel the truth on the variations noticed. In the peculiar facts and circumstances of the present case, in the interest of justice to both the parties, the site of the petitioner has to be re-surveyed by the competent authority mentioned in the advisory letters of the 1st respondent to verify whether the petitioner has constructed the building beyond the permissive limit, in violation of the terms of conditions of the NOC and also to verify whether it is established by the 1st respondent that the data tendered by the petitioner is different from the 315 actual data and it would adversely affect the aircraft operations. Therefore cancellation of the NOC to the entire building including the construction made within the permissive limit, is erroneous and contrary to law.
135. The material on record clearly depicts that this Court by the order dated 31.7.2014 directed the AAI to conduct aeronautical study and submit the report. The said order passed by the learned Single Judge is the subject matter of Writ Appeal. Though the report submitted by the AAI is not challenged, the fact remains that the Division Bench observed that any report to be submitted by the AAI is subject to the result of the present writ petition and further the re- survey of the site has not been done during the pendency of the writ petition either at the instance of the petitioner or at the instance of the 1st respondent. 316
It is also not in dispute that the 1st respondent - HAL has not challenged the interim orders passed by this Court dated 5.11.2015 and 7.12.2015. The operative portions of the said two orders read as under:
Order dated 5.11.2015:
In that view of the matter, and in order to elucidate and amplify the direction at paragraph 45 of the order dated 31.7.2014, it is appropriate to modify/clarify as follows:
"That the aeronautical study of Bengaluru (HAL) Aerodrome is for the purpose of ascertaining as to whether or not the building constructed or to be constructed to the height of 62 meters above the ground level of property in question in accordance with notified parameters and Annexure-B to the petition for HAL Airport would affect (safety) of the Airport operations"317
Application is accordingly ordered.
Learned counsel for the first respondent submits that instructions would be issued to Airport Authority of India by the weekend and if so done, relist on 04.12.2015."
Order dated 7.12.2015:
Having regard to the specific stand of respondent/HAL in its statement of objections to I.A. No.2/2014 following which by the order dated 05.11.2015 directed modification of the order dated 31.7.2014, undoubtedly, the AAI is required to comply with the said order to conduct Aeronautical study of Bengaluru (HAL) Aerodrome in terms of the notified parameters, Annexure-B (S.O. 84(E), to the petition for HAL Airport to ascertain as to whether or not the boiling constructed or to be constructed above 62 meters from the ground level of petitioner's property would affect the safety of the Airport 318 operation and submit the report in any event by the 31st December 2015."
The interim orders stated supra have become final. It is also not in dispute that the aeronautical study report submitted before the Court clearly depicts that the height of 954.41 meters AMSL is within the maximum allowable penetration of OLS (of 45 meters) as per Aeronautical Study Guidelines already stated supra.
136. Admittedly as on the date of the NOC issued by the 1st responder on 28.10.2011, the Notification No.SO.84E dated 14.1.2010 was in existence and the Notification No.GSR 751(E) issued under Section 9A of the Aircraft Act came into force on 30.9.2015 during the pendency of the present writ petition and Notification No.GSR 751(E) superseded the earlier notification No.SO.84E. Admittedly the impugned order relating to 'cancellation of NOC for height clearance' issued on 16.8.2013 i.e., before the new 319 Notification came into force. Therefore, the NOC dated 28.10.2011 and the impugned order dated 16.8.2013 relating to cancellation of NOC, both are under the Notification dated 14.1.2010 and the same hold good in the facts and circumstances of the present case. A careful reading of the pleadings and objections in the writ petition clearly depicts that the 1st respondent has issued cancellation of NOC Letter dated 16th August, 2013 as per Annexure-AQ mainly on the ground that the petitioner has constructed the building unauthorisedly in violation of the conditions of NOC dated 28th October, 2011 permitted by the HAL for construction of the building (Coord:Latitutde 'N12˚ 55'38.28") Langitude (077˚ 37'55.74") to height 62 meters. (Sixty Two Meters only) ABOVE GROUND LEVEL, so that the top of the proposed structure, when erected shall not exceed 870 meters (Site elevation) + 62 meters (Height of the structure) i.e., 932 meters. AMSL (above mean sea level). According to the 1st 320 respondent, the data furnished by the petitioner at the time of filing the application i.e., 870 meters vastly differs from the data available with the 1st respondent. The said communication was made by the 1st respondent only on 16th September, 2012. By that time, the construction of the building upto 17 floors was over as contended by the petitioner.
137. Though the learned senior counsel for the petitioner has contended that HAL notified parameters are on the website of the HAL and also notified unnamed building, Jayanagar complex (height 3291 feet), public utility building (height 3291 feet and it is on the north west of the runway and is indicated by the dot) etc., as aerodrome obstacles and the petitioner's building has not been notified by HAL as aerodrome obstacle, the same cannot be accepted. Admittedly, that is not the issue before this Court. According to the 1st respondent, the petitioner's building is within 3.35 kilometers and whereas the notification dated 321 14.1.2010 (Annexure-B) stipulates the height restriction for construction of any building within 4 kilometers radius from the HAL. ARP is 45 meters from the aerodrome elevation. The petitioner cannot claim any equity in illegality. My view is fortified by the dictum of the Hon'ble Supreme Court in the case of Fuljit Kaur vs. State of Punjab reported in (2010)11 SCC 455 : AIR 2010 SC 1937, wherein at paragraphs 11 and 12 it is held as under:
11. The respondent cannot claim parity with D.S. Laungia [AIR 1993 P&H 54] in view of the settled legal proposition that Article 14 of the Constitution of India does not envisage negative equality. Article 14 is not meant to perpetuate illegality or fraud.
Article 14 of the Constitution has a positive concept. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a 322 wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim the benefits on the basis of the wrong decision. Even otherwise Article 14 cannot be stretched too far otherwise it would make function of the administration impossible. (Vide Coromandel Fertilizers Ltd. v. Union of India - AIR 1984 SC 1772] , Panchi Devi v. State of Rajasthan [(2009) 2 SCC 589 : and Shanti Sports Club v. Union of India [(2009) 15 SCC 705] .)
12. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Admn. v. Jagjit Singh [AIR 1995 SC 705] , Sneh Prabha v. State of U.P. [AIR 1996 SC 540] , Jalandhar Improvement Trust v. Sampuran Singh [AIR 1999 SC 1347] , State of Bihar v.
323
Kameshwar Prasad Singh [(2000) 9 SCC 94 : 2000 SCC (L&S) 845 : AIR 2000 SC 2306] , Union ofIndia v. Rakesh Kumar [(2001) 4 SCC 309 : 2001 SCC (L&S) 707 :
AIR 2001 SC 1877] , Yogesh Kumar v. Govt. of NCT, Delhi [(2003) 3 SCC 548 :
2003 SCC (L&S) 346 : AIR 2003 SC 1241] , Union of India v. International Trading Co. [(2003) 5 SCC 437 : AIR 2003 SC 3983] , Anand Buttons Ltd. v. State of Haryana [(2005) 9 SCC 164 : AIR 2005 SC 565] , K.K. Bhalla v. State of M.P. [(2006) 3 SCC 581 : AIR 2006 SC 898] and Krishan Bhatt v. State of J&K [(2008) 9 SCC 24 : (2008) 2 SCC (L&S) 783] .)
138. It is well settled by now that a person cannot invoke Article-14 to claim a benefit extended to someone similarly placed, if he is not lawfully entitled to such benefit in the first instance. Article 14 embodied the concept of positive equality alone and not negative equality. That is to say, it cannot be relied upon to perpetuate the illegality or irregularity. My view is fortified by the dictum of the Hon'ble Supreme 324 Court in the case of Basavaraj and another vs. Special Land Acquisition Officer, wherein at paragraph-8 it is held as under:
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated.
Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong 325 order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible The said proposition has been recently affirmed by the three-Judge Bench of the Hon'ble Supreme Court in the case of State of Odisha & another vs. Anup Kumar Senapati & another in Civil Appeal No.7295 of 2019 dated 16.9.2019.
139. The material on record clearly depicts that the petitioner has not challenged the conditions of NOC including structures of the construction to be made i.e., 326 upto 932 meters Above Mean Sea Level and the notification dated 14.01.2010 issued by the Central Government, Annexure-B and now it cannot turn back and seek a writ of mandamus directing the 1st respondent to permit it to construct maximum height as it does not adversely affect the aircraft operations as may be determined by the aeronautical study to be conducted by the 1st respondent based on the notified parameters of HAL Airport on the date of issue of NOC to be conducted by the 1st respondent through AAI or ICAO or any authorized agency and to direct the 1st respondent to revalidate the No Objection Certificate dated 28.10.2011 issued by it for a further period of 5 years, after setting aside cancellation of NOC. Such a prayer cannot be granted as the petitioner has not challenged the conditions of NOC fixing the height of 932 meters. The only issue is whether the petitioner has violated the conditions of NOC and has constructed the building beyond 870 meters +62 meters i.e., 932 327 AMSL or not. Since the 1st respondent while issuing NOC has not verified the data available with them and NOC granted by the 1st respondent-HAL Committee considering the documents produced by the petitioner along with the certificate issued as per Annexure-E4 M/s. Precision Surveys (India) Pvt. Ltd. and certified by the Dr. Ambedkar Institute of Technology as per Annexure-E5 and after a lapse of one year, the 1st respondent has issued number of advisories to the petitioner including the subsequent advise dated 15th September 2012 to conduct the resurvey of the proposed site/building for the purpose of finding out site elevation in the presence of HAL NOC Committee. As the petitioner has not taken any steps, NOC came to be cancelled including the permissible construction and a direction was issued to the petitioner to apply afresh for the NOC after getting the resurvey done by the competent authority.
328
140. It is also not in dispute that the first respondent issued NOC dated 28.10.2011 to put up construction of building to a height of 932 mtrs AMSL i.e., 62 mtrs AMSL building above 870 mtrs AMSL the elevation of the land in question, subject to the following conditions:
(i) If it is established that the data furnished by the petitioner is actually different and which could adversely affect the aircraft operation, such part of the structure will have to be demolished at the cost of the petitioner, as may be directed by the HAL.
(ii) Petitioner is advised to verify the said data before construction of the building, and
(iii) NOC Issued subject to the provisions of Section 9A of the Aircraft Act, 1934 and the notification issued thereunder.329
A careful reading of the said conditions makes it clear that, it is the duty of the 1st respondent to verify the data furnished by the petitioner over the accurate elevation of the land in question when NOC issued. The duty incumbent on 1st respondent has not been discharged and for the first time, the 1st respondent issued Annexure-N dated 15.09.2012, approximately after 11 months from the date of issue of NOC stating that the data furnished by the petitioner "vastly differs"
from the data available with it. The contents of the letter dated 15.09.2012 does not disclose the details of variation, its extent and the basis for such conclusions, or the data available with the first respondent as on the date of issue of NOC. In the statement of objections too, nothing is forthcoming over specification of the allegation of vast difference in data. Had the details of the variation in data made available, it would have obviated re-survey of the 'land in question'. Therefore, prima-facie, there was no material with the first 330 respondent to support the plea that the data placed by the petitioner was "established" to be different. Of course, the sentence in the NOC, "if however at any stage it is established that the said data as tendered by the said applicant is actually different from the one tendered", makes no sense, nevertheless, it ought to be understood as data placed by the petitioner is established to be different at a later date. The use of the word "established" assumes importance, since, that is the requirement in relation to violation of condition of NOC. "Established" in common parlance means to show to be valid or true; proof to establish the fact of the matter. Therefore, a duty was cast upon the first respondent to prove that the data made available by the petitioner was established to be different, at a later date.
The first respondent was liable to make available all material facts and appraise of the said discovery that the data furnished by the petitioner was, in fact, incorrect by showing the actual difference. But, the 331 letter issued by the 1st respondent, stated supra, does not disclose the material particulars, relevant facts and actual difference. Admittedly, the 1st respondent, either before issue of NOC or at any time after issue of NOC verified the data furnished by the petitioner over the elevation of the 'land in question'. Since the said letter advised the petitioner to have re-survey conducted to find out the elevation in the presence of HAL NOC Committee. The same was rebutted by the petitioner by reply dated 15.03.2013 stating that in the meeting with the 1st respondent and its committee, it was indicated that the probable difference could be in the range of 15 to 20 mtrs AMSL. By conjoint reading of the word used "established" and "over the data which could adversely affect aircraft operation" stands violated if the data made available by the petitioner is established to vastly differ at a later date, and which data, adversely affects aircraft operations. Both the conditions ought to be fulfilled in order to establish violation of condition No.(i) 332 of the NOC. Merely because it is alleged that there is a vast difference in data by itself does not amount to breach of condition No.(i), but must be accompanied with 'established' difference in the data which would adversely affect aircraft operations supported by material documents. In the absence of established material which depicts vast difference at a later date, in the data filed by the petitioner at the time of application for issue of NOC in relation to the elevation of the 'land in question' and the height of the building to be constructed thereon, to adversely affect aircraft operation, prima-facie, condition No.(i) is not shown to be violated. If the 1st respondent-HAL NOC Committee had the data with it as on the date of issue of NOC, it is not known as to what prevented it from verifying the said data with reference to the data furnished by the petitioner or alternatively secure a separate survey of the 'land in question' in the presence of petitioner and the committee of the 1st respondent. The fact remains 333 that, on the date of issue of NOC, 1st respondent did not have data of the elevation of the 'land in question' indicating that the data made available by the petitioner in that regard did vastly differ and which could adversely affect aircraft operations.
141. In exercise of powers under Section 9A of the Aircraft Act, 1934, the Government of India issued notification dated 14.01.2010, Annexure-B. The list of defence aerodromes is provided in Annexure-IIIC of the said notification, whereunder, Bengaluru (HAL) Airport is at Sl.No.5 specifying its latitude and longitude, in degrees, the elevation as 888 meters, the runway orientation as 09/27 while its dimension as 3306 x 45 meters, owned by the 1st respondent. Clause 2(b) of the notification dated 14.01.2010, depicts that, 'for defence aerodromes, defence authorities shall be responsible for issuing NOC in accordance with this notification and subject to any other restriction or condition which such 334 authorities deemed fit for issuing the NOC." Clause 3 depicts that, "no building or structure higher than the height specified in Annexure I and II shall be constructed or erected and no tree which is likely to grow or ordinarily grows higher than the height specified in the said Annexure I and II shall be planted on any land within a radius of twenty kilometers from the aerodrome reference point". Clause 7 depicts that, "each aerodrome operator shall be responsible for preparing zoning maps in conformity with the provisions of this notification with digitized data in WGS84 Coordinates indicating all the latest features around the airport."
In the light of various criteria to be reckoned for fixing the minimum and maximum height of the building, the 1st respondent failed to place the actual calculation based upon which 45 mtrs AMSL, was arrived at, and the petitioner made out a prima-facie case that here was 335 no material for the 1st respondent to establish vast difference" in the data furnished by the petitioner over elevation of land in question which would adversely affect aircraft operation and in the absence of material to establish the maximum height of the building to be 45 mtrs AMSL above 870 mtrs AMSL, it is a fit case to resurvey the site property in dispute by the competent authority in the interest of the parties to the lis.
142. The definition of the term 'aerodrome' stated supra does not make distinction between a civil and defence aerodrome, while Annexure IIIC of the notification, provides for a list of defence aerodromes whereunder Bengaluru (HAL) Aerodrome owned by the 1st respondent is mentioned at Sl.No.5. It may be that the defence aerodrome is put to use for testing aircraft for defence of the Country, but the Bengaluru (HAL) Aerodrome is also used as a civil aerodrome since it allows operation of aircrafts, both domestic and private. 336 In calculating the maximum permissible height for issue of NOC, no distinction is made based upon whether the aerodrome is either civil or defence or put to use for operation of civil and defence aircrafts. Therefore, the contention of the learned Senior counsel for the first respondent that the defence aerodrome is not same as a civil aerodrome under the Aircraft Act, 1934, is unacceptable.
143. Learned Senior Counsel for the 1st respondent mainly relied upon the conditions of the NOC dated 28.10.2011, Annexure-A, contending that the petitioner has constructed the building in violation of the conditions of NOC. Therefore, the 1st respondent, after issuing several advice letters dated 15.09.2012, 19.02.2013, 12.04.2013, 27.04.2013, 20.05.2013, 21.06.2013, 02.07.2013 and 27.07.2013, issued the Cancellation of NOC for height clearance dated 16.08.2013. But, the 1st respondent-HAL cannot take 337 advantage of portion of the letter i.e., NOC and ignore condition No.3, i.e., "if, however, at any stage it is established that the said data as tendered by the said applicant is actually different from one tendered and which could adversely affect aircraft operations, the structure of part(s) thereof in respect of which this No Objection Certificate is being issued will have to be demolished at his own cost as may be directed by HAL Airport, Bangalore". Admittedly, the 1st respondent has not produced any material evidence on record to prove the vast difference in the data furnished by the petitioner. Therefore, the 1st respondent cannot take advantage of a portion of the document in his favour and reject the rest of the document against it.
X. Judgments relied upon
144. My view is fortified by the dictum of the Hon'ble Supreme Court in the case of Shyam Telelink Limited, now Sistema Shyam Teleservices Limited 338 vs. Union of India reported in (2010)10 SCC 165, paragraphs 23, 25 and 26, which reads as under:
"23. The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English common law and often applied by courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument.
25. The view taken in the above decision has been reiterated by this Court in City Montessori School v. State of U.P. [(2009) 14 SCC 253] To the same effect is the decision of this Court in New Bihar Biri Leaves Co. v. State of Bihar [(1981) 1 SCC 537] where this Court said: (New Bihar 339 case [(1981) 1 SCC 537] , SCC p. 558, para
48) "48. It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbate non reprobate (one who approbates cannot reprobate). This principle, though originally borrowed from Scots law, is now firmly embodied in English common law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and 340 reject the rest. That is to say, no party can accept and reject the same instrument or transaction (per Scrutton, L.J., Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co. Ltd.
[(1921) 2 KB 608 : 1921 All ER Rep 215 (CA)] ; ...)."
26. The decision of this Court in R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC 683 :
AIR 1993 SC 352] brings in the doctrine of election in support of the very same conclusion in the following words: (SCC pp. 687-88, para 10) "10. Law does not permit a person to both approbate and reprobate.
This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that:
341
'... A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage.' (See Verschures Creameries Ltd.
v. Hull and Netherlands Steamship Co. Ltd. [(1921) 2 KB 608 : 1921 All ER Rep 215 (CA)] KB at p. 612, Scrutton, L.J.) According to Halsbury's Laws of England, 4th Edn., Vol. 16:
"1508. Examples of the common law principle of election.--After taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside.' "342
145. The 1st respondent has alleged that the petitioner has furnished incorrect particulars while applying for NOC and thereby, played fraud on the 1st respondent and constructed building in violation of the conditions of the NOC and the provisions of Section 9A of the Aircraft Act, 1934. But, there is no plea in the statement of objections nor produced any material documents before the Court to prove the same. In the absence of the same, the contention of the learned Senior Counsel for the 1st respondent cannot be accepted, in view of the dictum of the Division of this Court in the case of M/s National Technological Institutions (NTI) Housing Co-operative Society Ltd., and others vs. The Principal Secretary to the Government of Karnataka, Revenue Department and others reported in ILR 2012 KAR 3431, paragraphs 28 and 29 reads as under:
343
"28. In fact the judgments of the
Supreme Court in (1) H.M.T.'s
case (2) Bangalore City Co-Operative
Housing Society's case and
(3) Vyalikaval's case, are not only
precedents for the law laid down
therein but is also a classic example of how the judgments are to be delivered in writ jurisdiction, when fraud is alleged. Those judgments show the importance the Apex Court has given to the pleadings and the pains they have taken in carefully scrutinizing every piece of material placed before them and thereafter extracting the relevant portions of the documents in the judgments and on appreciation of the same, recording a factual finding. This is necessary because, when the allegation of fraud is disputed, in writ jurisdiction, generally no trial is conducted, evidence recorded and there is no opportunity to cross examine. The entire finding on fraud is to be based on the contents of documents, the 344 pleadings and any admissions in the pleadings and in the documents. This exercise undertaken by the Apex Court is worth emulating. In this background, the impugned judgment rendered by the Learned Single Judge do not pass the test prescribed by the Apex Court.
FRAUD
29. Fraud avoids all Judicial acts, ecclesiastical or temporal. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to conduct of the former either by words or letter. It is not enough to use such general words as fraud, deceit or machinations. The rule is, pleadings have to be concise and they must also be precise, but the exception to the said rule is, where fraud is charged against the opposite party, it is plain and basic rule of pleadings that in order to make out a case of fraud, there must be:345
(a) an express allegation of fraud.
(b) all material facts in support of the allegations must be laid down in full and with a high degree of precision.
It is an acknowledged rule of pleading. The object of the rule is that in order to have a fair trial, it is imperative that the party should state the essential material facts, so that the other party shall not be taken by surprise. When a person seeks relief on the ground of fraud, but no particulars of fraud are given in the pleading, the Court may allow him to amend the pleadings or they may reject the pleading. Hence, general allegations however strongly worded are insufficient to amount to a plea of fraud of which any Court ought to take notice. The plea of fraud is to be pleaded specifically and substantially proved by the party pleading fraud. A litigant who pleads fraud or other improper conduct should not be allowed to proceed with his case unless he places on record the precise particulars as to the 346 charges, even if no objection is taken on behalf of the parties who are interested in disproving the charges. The fraud is purely a question of fact. How the plea of fraud is to be pleaded is clearly set-out in Order 6 Rule 4 of Code of Civil Procedure. The Writ Rules make the provision of Code of Civil Procedure applicable to Writ Proceedings also. Fraud is a question of fact. Normally a trial is required to prove the same.
Normally recording of evidence is not undertaken in Writ Proceedings. It is not un-common that the Writ Courts do entertain plea of fraud and record finding on the basis of the materials produced before them. But the pleading of fraud whether it is a Civil Proceedings or Writ Proceedings is the same. In fact, in a Writ Proceedings, as normally evidence is not recorded, it is very much necessary the material particulars constituting fraud should be elaborately set-out, so that the other party has an opportunity to meet the case. However, elaborately the plea of fraud is pleaded, it is no substitute to 347 evidence. A plea of fraud is to be supported by documentary evidence in Writ Proceedings. Therefore, in a Writ Proceedings, the Court has to look into the pleadings, the defence of the opposite party and the documents which are produced before it to find out the case of fraud pleaded is made out or not. It is only when Court is convinced that the case of fraud is substantiated by documentary evidence produced along with the writ petitions, may be coupled with some admissions, the Court can record a factual finding of fraud, as a question of fact. Therefore it is necessary, if the Writ Court is going into the question of fact, the judgment should set-out a plea of fraud taken from the pleadings of the parties, then the documents which are produced in support of the plea of fraud is looked into to find out whether the plea of fraud is made out and then record a factual finding. It is only thereafter applying any law to the said facts would arise. If this exercise is not done by the Writ Court and 348 finding of fraud is recorded without setting out the plea of fraud in its order, without referring to the documentary evidence to substantiate the fraud, it would be patently illegal. A factual finding of fraud cannot be recorded on the basis of a finding in a report, which is produced in support of the plea. That report may be a piece of evidence on the basis of which the Court can record a finding. But a finding in a report by itself is not sufficient to hold the case of fraud pleaded by the party is established. Once fraud is proved, it vitiates judgments, contracts and all transaction whatsoever as fraud unravels everything."
146. In identical circumstances, the Hon'ble Supreme Court, in the case of Bishundeo Narain and another vs. Seogeni Rai and Jagernath reported in AIR 1951 SC 280 paragraphs 27 and 28, held as under:
349
"27. We turn next to the questions of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded.
28. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order 6 Rule 4 of the Civil Procedure Code."350
147. The same view was taken by the Hon'ble Supreme Court in the case of Svenska Handelsbanken vs. Ms/ Indian Charge Chrome and others reported in (1994)1 SCC 502, paragraphs 41, 42 and 87 reads as under:
"41. Again it appears that the High Court found a strong prima facie case against defendant 4 merely on reading the plaint. Pleadings make only allegations or averments of facts. Mere pleadings do not make a strong case of prima facie fraud. The material and evidence has to show it. No material whatsoever is referred to by the High Court.
42. In A.L.N. Narayanan Chettyar v.
Official Assignee, High Court Rangoon [AIR 1941 PC 93 : 196 IC 404 : 1941 OWN 1392] the Privy Council held that:
"Fraud like any other charge of a criminal offence whether made in civil or 351 criminal proceedings, must be established beyond reasonable doubt. A finding as to fraud cannot be based on suspicion and conjecture."
87. The High Court was not right in working on mere suspicion of fraud or merely going by the allegations in the plaint without prima facie case of fraud being spelt out from the material on record."
148. The 1st respondent-HAL NOC Committee, while accepting the application and the documents furnished by the petitioner for issue of NOC, ought to have verified the application and documents and inspected the site and the data furnished by the petitioner. But, no material is placed before the Court to establish that the 1st respondent has verified the data furnished along with data available with the 1st respondent, with due diligence and prudently. Later, after one year, the 1st respondent issued letter dated 352 15.09.2012 stating that the elevation submitted by the petitioner 870 mtrs AMSL vastly differs from the data available with the 1st respondent. The same cannot be accepted, in view of the law of estoppel, as the 1st respondent is an authority of the Central Government ought to have acted as a public trustee. Every public office is a trustee of the society and in all facets of public administration, every public servant/office has to exhibit honesty, integrity, sincerity and faithfulness in implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence and efficiency in the public administration. A public servant/office entrusted with duty and power to implement constitutional policy under Articles 14, 21 and 300A and all inter-related directive principles of state policy under the Constitution, should exhibit transparency in implementation and of accountable for due effectuation of constitutional goals. Therefore, the contention of the learned Senior counsel for the 1st 353 respondent cannot be accepted. My view is fortified by the dictum of the Division Bench of the Allahabad High Court in the case of Muhammad Shafi and others vs. Muhammad Said and another and Bhawani Prasad reported in ILR 1929 ALL 248, wherein, it has been held that, "where truth is accessible to a party, the plea of estoppel upon representation tails. If the defendant behaved diligently and prudently and pushed their enquiries further afield, it would have been impossible for them not to know the truth legal position.
149. The Division Bench of the Allahabad High Court, in the case of Lachman Singh vs. Collector of Moradabad and another reported in AIR 1933 ALL 641, at paragraph 4, held as under:
"4. The contesting defendant resisted the suit inter alia on the ground that the plaintiff-appellant was estopped from denying the title of the defendant to the property recorded in the name of Nawal Kunwar and purchased by the 354 predecessor-in-title of the defendant. This contention was overruled by the trial Court, but found favour with the lower appellate Court with the result that the lower appellate Court dismissed the plaintiff's claim for redemption with respect to the share recorded in the name of Nawal Kunwar. In second appeal before us it is argued that as the mortgagee auction-purchaser knew, or at any rate had the means of knowing, that Nawal Kunwar had no interest in the share recorded in her name and that share belonged to Gulab Singh and Baldeo Singh, the principle of estoppel has no application to the case. It is urged that by purchasing the share that was recorded in the name of Nawal Kunwar the mortgagee could not acquire the equity of redemption in that share and, accordingly, the lower appellate Court was wrong in dismissing the plaintiff's suit with respect to that share. We agree with the learned counsel for the appellant that the facts of the present case did not 355 invite the application of the doctrine of estoppel. It has been found by the Courts below that the entire Patti Debi Singh was owned by Baldeo Singh and Gulab Singh and that Nawal Kunwar had no right or interest in the same. It is further manifest that the fact as to who were the owners of Patti Debi Singh was known to the mortgagee or in any case could have been known to him by the exercise of ordinary diligence. It cannot therefore be said, that the mortgagee was, in any way, by the act, omission or declaration of Gulab Singh or Baldeo Singh, misled into the belief that Nawal Kunwar had a proprietary interest in the share recorded in her name. This being so, the plea of estoppel, in our judgment, was without substance and was rightly overruled by the trial Court."
150. It is also not in dispute that during pendency of the present writ petition, in view of the controversy between the parties, the petitioner 356 approached the experts in the filed about the conducting of aeronautical study, who gave their opinion As stated supra. The aeronautical study was conducted by AAI in pursuance of the directions issued by this Court, and the report depicts that construction made by the petitioner is in accordance with the notified parameters for HAL Airport and notification issued under Section 9A of the Aircraft Act, 1934 i.e., S.O 84(E) dated 14.01.2010 and notification dated 30.09.2015 in GSR 751(E), which superseded S.O. 84(E) has to be verified only after conducting resurvey of the site property in dispute. The opinion expressed by the experts and report submitted by the AAI without the consent of the 1st respondent cannot be relied upon by this Court at this stage, as the order passed by the learned single Judge appointing AAI has not been interfered by the Division Bench of this Court and held that the report of the AAI is always subject to the result of the present writ petition.
357
151. It is relevant to state at this stage that the Division Bench of the Bombay High Court, in the case of Yeshwanth Shenoy vs. The Union of India and others in PIL No.86/2014 dated 01.09.2016, has held that before granting NOC by the competent authority, care should be taken to see that the height is properly calculated and mean seal level is fixed, and at paragraph-5 has held that, "we are informed by the learned ASG appearing on behalf of the AAI that in fact discretion is not being exercised for the purpose of relaxing the height restrictions. We also direct the Municipal Corporation and other planning authorities to again calculate the height and ensure that height is calculated from the mean sea level and only thereafter occupation certificate may be granted. Care should be taken that even any objection protruding above the height restrictions, such as antenna, pole, etc., also may be demolished and should not be allowed to violate 358 the height restriction. If the Corporation does not possess such a special equipment, which is required for the purpose of calculating the height from the mean seal level, it should either purchase these special equipments or outsource it or approach MIAL for the purpose of carrying out the exercise and measuring the height.
152. In view of the controversy between the parties with regard to data furnished by the petitioner and the construction made by the petitioner in violation of the NOC as alleged by the 1st respondent, it has to be thrashed out by re-survey by competent authority, in order to dissolve the controversy between the parties, permanently. Though the learned counsel for the petitioner relied upon several judgments to the effect that the Court should slow in interfering with the opinion of the experts, they are not relevant at this stage, as already stated supra the opinion expressed by 359 the experts who are not appointed at the instance of both the parties. The main dispute between the petitioner and the 1st respondent in the present case is that, according to the petitioner, the petitioner has constructed the building strictly in terms of the conditions of the NOC issued as per Annexure-A dated 28.10.2011, and according to the 1st respondent, the petitioner has constructed the building in violation of the conditions of the NOC as well as the notification dated 14.01.2010 issued as per Annexure-B and the data furnished by the petitioner at the time of applying for NOC, which vastly differs from the data available with the 1st respondent.
153. This Court, while considering the rival contentions of the learned Counsel for the parties, is of the considered opinion that, before issuing NOC, the 1st respondent did not verify the application, documents and data furnished by the petitioner, with the data 360 available with the 1st respondent. Annexure-N dated 15.09.2012 was issued only after lapse of nearly one year, holding that, the data furnished by the petitioner vastly differs from the data available with the 1st respondent and further advised the petitioner to carry out resurvey of the proposed site for the purpose of finding elevation in the presence of HAL NOC Committee within 30 days from the date of receipt of the said letter and also issued several advices to that effect. In view of the aforesaid circumstances, in order to dissolve the dispute between the parties, this Court has a wide power to appoint a Commissioner for not only enforcement of fundamental right, but also for enforcement of legal right and the report of the Commissioner has evidentiary value, as held by the Hon'ble Supreme Court in the case of Bandhua Mukti Morcha vs. Union of India and others reported in (1984)3 SCC 161, para 15, reads as under: 361
"15. We may point out that what we have said above in regard to the exercise of jurisdiction by the Supreme Court under Article 32 must apply equally in relation to the exercise of jurisdiction by the High Courts under Article 226, for the latter jurisdiction is also a new constitutional jurisdiction and it is conferred in the same wide terms as the jurisdiction under Article 32 and the same powers can and must therefore be exercised by the High Courts while exercising jurisdiction under Article 226. In fact, the jurisdiction of the High Courts under Article 226 is much wider, because the High Courts are required to exercise this jurisdiction not only for enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of statute and they need to be enforced as urgently and vigorously as fundamental rights."362
154. It is also not in dispute that the respondent Nos.2, 3, 11 to 74 are the alleged buyers of the flats/ apartments from the petitioner. According to the said respondents, possession of the flats was not at all delivered to them, because of non completion of the construction. The 1st respondent-HAL has not issued any public notice about the illegal construction made by the petitioner and cancelled the NOC in its entirety. It amounts to giving room for demolition of the entire building, thereby the prospective buyers who are innocent, cannot be made victimized in the hands of the petitioner and 1st respondent. Admittedly, in the present case, the 1st respondent has not produced any material documents to notify the general public about the illegal construction made by the petitioner and only advisories were issued to the petitioner about furnishing of wrong data by the petitioner at the time of application for NOC and cancellation of NOC was issued 363 only after one year. By that time, according to the petitioner, the construction was completed upto 17th floors, different wings as already stated supra.
155. While considering the provisions of Article 14 and 300A of the Constitution of India, the Hon'ble Supreme Court, in the case of Godrej & Boyce Manufacturing Company Limited and another vs. State of Maharashtra and others reported in (2014)3 SCC 430, at paragraph 83, 84, 85 and 86 held as under:
"83. Looking at the issue from the point of view of the citizen and not only from the point of view of the State or a well- meaning pressure group, it does appear that even though the basic principle is that the buyer should beware and therefore if the appellants and the purchasers of tenements or commercial establishments from the appellants ought to bear the consequences of unauthorised construction, the well-364
settled principle of caveat emptor would be applicable in normal circumstances and not in extraordinary circumstances as these appeals present, when a citizen is effectively led up the garden path for several decades by the State itself. The present appeals do not relate to a stray or a few instances of unauthorised constructions and, therefore, fall in a class of their own. In a case such as the present, if a citizen cannot trust the State which has given statutory permissions and provided municipal facilities, whom should he or she trust?
84. Assuming the disputed land was a private forest, the State remained completely inactive when construction was going on over acres and acres of land and of a very large number of buildings thereon and for a few decades. The State permitted the construction through the development plans and by granting exemption under 365 the Urban Land (Ceiling and Regulation) Act, 1976 and providing necessary infrastructure such as roads and sanitation on the disputed land and the surrounding area. When such a large- scale activity involving the State is being carried on over vast stretches of land exceeding a hundred acres, it is natural for a reasonable citizen to assume that whatever actions are being taken are in accordance with law otherwise the State would certainly step in to prevent such a massive and prolonged breach of the law. The silence of the State in all the appeals before us led the appellants and a large number of citizens to believe that there was no patent illegality in the constructions on the disputed land nor was there any legal risk in investing on the disputed land. Under these circumstances, for the State or Bombay Environment Action Group to contend that only the citizen must bear the consequences of the unauthorised construction may not be 366 appropriate. It is the complete inaction of the State, rather its active consent that has resulted in several citizens being placed in a precarious position where they are now told that their investment is actually in unauthorised constructions which are liable to be demolished any time even after several decades. There is no reason why these citizens should be the only victims of such a fate and the State be held not responsible for this state of affairs; nor is there any reason why under such circumstances this Court should not come to the aid of victims of the culpable failure of the State to implement and enforce the law for several decades.
85. In none of these cases is there an allegation that the State has acted arbitrarily or irrationally so as to voluntarily benefit any of the appellants. On the contrary, the facts show that the appellants followed the 367 due legal process in making the constructions that they did and all that can be said of the State is that its Rip Van Winkleism enabled the appellants to obtain valid permissions from various authorities, from time to time, to make constructions over a long duration. The appellants and individual citizens cannot be faulted or punished for that.
86. These appeals raise larger issues of good administration and governance and the State has, regrettably, come out in poor light in this regard. It is not necessary for us to say anything more on the subject except to conclude that even if the State were to succeed on the legal issues before us, there is no way, on the facts and circumstances of these appeals, that it can reasonably put the clock back and ensure that none of the persons concerned in these appeals is prejudiced in any manner whatsoever."368
156. The Hon'ble Supreme Court, while considering the existence of the legitimate expectation, in the case of Navjyoti Coop. Group Housing Society and others vs. Union of India and others reported in (1992)4 SCC 477, at paragraph 15, held as under.
"15. It also appears to us that in any event the new policy decision as contained in the impugned memorandum of January 20, 1990 should not have been implemented without making such change in the existing criterion for allotment known to the Group Housing Societies if necessary by way of a public notice so that they might make proper representation to the concerned authorities for consideration of their viewpoints. Even assuming that in the absence of any explanation of the expression "first come first served" in Rule 6(vi) of Nazul Rules there was no statutory requirement to make allotment with reference to date of registration, it 369 has been rightly held, as a matter of fact, by the High Court that prior to the new guideline contained in the memo of January 20, 1990 the principle for allotment had always been on the basis of date of registration and not the date of approval of the list of members. In the brochure issued in 1982 by the DDA even after Gazette notification of Nazul Rules on September 26, 1981 the policy of allotment on the basis of seniority in registration was clearly indicated. In the aforesaid facts, the Group Housing Societies were entitled to 'legitimate expectation' of following consistent past practice in the matter of allotment, even though they may not have any legal right in private law to receive such treatment. The existence of 'legitimate expectation' may have a number of different consequences and one of such consequences is that the authority ought not to act to defeat the 'legitimate expectation' without some overriding reason of public policy to justify its 370 doing so. In a case of 'legitimate expectation' if the authority proposes to defeat a person's 'legitimate expectation' it should afford him an opportunity to make representations in the matter. In this connection reference may be made to the discussions on 'legitimate expectation' at page 151 of Volume 1(1) of Halsbury's Laws of England, 4th edn. (re-issue). We may also refer to a decision of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service [(1984) 3 All ER 935] . It has been held in the said decision that an aggrieved person was entitled to judicial review if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment on such reasons."371
157. The State functionaries must act fairly and reasonably, including the first respondent-HAL. While issuing NOC and canceling the NOC, HAL ought to have acted fairly and reasonably, as held by the Hon'ble Supreme Court in the case of Management of M/s M.S.Nally Bharat Engineering Co. Ltd., vs. State of Bihar and others reported in (1990)2 SCC 48 at paragraph 13, held as under:
"13. What is thus important in the modern administration is the fairness of procedure with elimination of element of arbitrariness. The State functionaries must act fairly and reasonably. That is, however, not the same thing to state that they must act judicially or quasi- judicially. In Keshav Mills Co. Ltd. V. Union of India Mukherjea, J. said (SCC p. 387, para 8: SCR p.30) "The administrative authority concerned should act fairly, 372 impartially and reasonably.
When administrative officers are concerned, the duty is not so much to act judicially as to act fairly"."
158. The Hon'ble Supreme Court, while considering as to what is natural justice, in the case of Dev Dutt vs. Union of India and others reported in (2008)8 SCC 725, at paragraph 24, held as under:
"24.What is natural justice? The rules of natural justice are not codified nor are they unvarying in all situations, rather they are flexible. They may, however, be summarised in one word: fairness. In other words, what they require is fairness by the authority concerned. Of course, what is fair would depend on the situation and the context."
159. It is the case of the first respondent that the petitioner has violated the terms and conditions of NOC and the notification issued by the Central Government 373 under the provisions of Section 9A of the Aircraft Act, 1934. The same is disputed by the petitioner and contended that the petitioner has constructed the building in accordance with the NOC and has not violated the terms and conditions of the NOC. The first respondent, in series of advisories issued and at impugned Order Annexure-AQ/cancellation of NOC order, at paragraph 6, specifically, has stated, as under:
6. "If you want a fresh NOC, you are advised to apply for the same after getting survey done by the Karnataka State Remote Sensing Application Centre ('KSRSAC') or Survey of India."
In view of the controversy and in view of the categorical statement made by the 1st respondent for re-survey of the site in dispute, if the petitioners are permitted to conduct re-survey done by the competent authority as observed by the 1st respondent in terms of the NOC issued by the 1st respondent dated 28.10.2011 and in 374 terms of the notification issued under Section 9A of the Aircraft Act, 1934, after re-survey conducted by the competent authority, if it is found that the construction made by the petitioner is in violation of the NOC and it affects the aircraft operation, certainly, the illegal portion of the construction made by the petitioner cannot be regularized, as the specific case of the 1st respondent is that the illegal construction would obstruct the aircraft operation in the HAL defence aerodrome. It is not in dispute that HAL Aerodrome is a unique Defence Aerodrome and it is the sole premier Aircraft, Design and Manufacturing Organisation in the country promoting a safe test flying environment which is critical for National Defence; Flying operations at HAL involve test flying of experimental, unproven, developmental Aeroplanes and Helicopters; Test flying of prototypes and pre- production models ; Special exercises are carried out such as "Practice Forced Landing",(PFL) which involves an unconventional approach to land; Carrying out Single Engine landing of a multi engine Aircraft for test purposes; Flying in 375 poor weather conditions (low visibility); Switching off engines and re-ignition in mid-air ; and Post production Test flying. The nature of work stated supra carried out in HAL Aerodrome entail a high level of risk and hence, safety margins from the obstacle on ground around the Airport are essential. In view of the peculiar facts and circumstances of the present case, the interest of the nation at large prevails over the individual interest of the petitioner. My view is fortified by the dictum of the Hon'ble Supreme Court in the case of Esha Ekta Apartments Cooperative Housing Society Limited and others vs. Municipal Corporation of Mumbai and others reported in (2013)5 SCC 357, paragraphs 4, 5 and 6, as under:
"4. The aforesaid observations found their echo in Shanti Sports Club v. Union of India in the following words:
(SCC pp.743-44, paras 74 & 75) 376 "74. In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of the higher functionaries of the State or other 377 extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc. apart from creating chaos on the roads.378
The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution.
They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town 379 planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc...
75. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus.
As and when the courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to 380 planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions." 381
5. In Priyanka Estates International (P) Ltd. Vs. State of Assam this Court declined the appellant's prayer for directing the respondents to regularize the illegal construction and observed SCC p.42, para 55) "55. It is a matter of common knowledge that illegal and unauthorized constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonizers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are 382 definitely against the public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder."
6. A somewhat similar question was recently considered in Dipak Kumar Mukherjee v. Kolkata Municipal Corpn. While setting aside the order of the Division Bench of the Calcutta High Court, this Court referred to the provisions of the Kolkata Municipal Corporation Act, 1980 in the context of construction of additional floors in a residential building in violation of the sanctioned plan and observed: (SCC p.344, para 8) "8. What needs to be emphasized is that illegal and 383 unauthorized constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorized constructions are supported by the people entrusted with the duty of preparing and executing master plan/ development plan/ zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to the poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/ unauthorisedly constructed 384 multi-storeyed structure raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.""
160. There is no dispute that the respondent Nos.3, 11 to 13, 16 to 25, 27 to 29, 32 to 34, 36 to 38, 40 to 45, 47, 48, 54, 56 to 62, 64, 67, 69, 71, 73 and 74, claiming that they are the agreement holders to purchase of flats from the petitioner and possession is not yet delivered, in view of the dispute between the petitioner and 1st respondent with regard to height of the building. According to the petitioner, he has not 385 violated the terms and conditions of the NOC and constructed within the permissible limit i.e., 932 m AMSL. But according to the 1st respondent-HAL, the petitioner has violated the terms and conditions of the NOC and has given wrong data while filing the application. It is also relevant that though the said respondents are claiming that they are agreement holders/purchasers, the fact that the buyer should beware and ascertain that whether the construction made by the petitioner is legal or illegal before entering into agreements/purchase, now, the prospective buyers cannot support the petitioner for a writ of mandamus.
My view is fortified by the dictum of the Hon'ble Supreme Court in the case of Godrej & Boyce Mfg.Co.
Ltd. And another vs. The State of Maharashtra and others reported in (2014)3 SCC 430, at paragraph 81, it is held as under:
"81. Looking at the issue from point of view of the citizen and not only from the 386 point of view of the State or a well meaning pressure group, it does appear that even though the basic principle is that the buyer should beware and therefore if the appellants and purchasers of tenements or commercial establishments from the appellants ought to bear the consequences of unauthorized construction, the well- settled principle of caveat emptor would be applicable in normal circumstances and not in extraordinary circumstances as these appeals present, when a citizen is effectively led up the garden path for several decades by the State itself. The present appeals do not relate to a stray or a few instances of unauthorized constructions and, therefore, fall in a class of their own. In a case such as the present, if a citizen cannot trust the State which has given statutory permissions and provided municipal facilities, whom should he or she trust?"
(emphasis supplied) 387
161. Further, it is well settled that 'buyer must beware' and the buyer has to establish that he had made the enquiry and took the requisite precautions to find out about the genuineness of the construction, before purchasing. My view is fortified by the judgment of the Hon'ble Supreme Court in the case of Commissioner of Customs (Preventive) vs. Aafloat Textiles India Private Limited and others reported in (2009)11 SCC 18, paragraphs 13 to 16, which reads as under:
13. It was for the buyer to establish that he had no knowledge about the genuineness or otherwise of the SIL in question. The maxim caveat emptor is clearly applicable to a case of this nature.
14. As per Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn., 2005 at p.
721: Caveat emptor means "let the purchaser beware". It is one of the settled maxims, applying to a purchaser who is bound by actual as well as constructive 388 knowledge of any defect in the thing purchased, which is obvious, or which might have been known by proper diligence. "Caveat emptor does not mean either in law or in Latin that the buyer must take chances. It means that the buyer must take care." (See Wallis v. Russell [(1902) 2 IR 585 (CA)] , IR p. 615.)
15. "Caveat emptor is the ordinary rule in contract. A vendor is under no duty to communicate the existence even of latent defects in his wares unless by act or implication he represents such defects not to exist." (See William R. Anson, Principles of the Law of Contract 245, Arthur L. Corbin, ed., 3d Am. Edn. 1919.) Applying the maxim, it was held that it is the bounden duty of the purchaser to make all such necessary enquiries and to ascertain all the facts relating to the property to be purchased prior to committing in any manner.
16.Caveat emptor qui ignorare non debuit quod jus alienum emit. A maxim meaning "let a purchaser beware; who ought not to be ignorant that he is purchasing the rights 389 of another". (Hob. 99; Broom; Co., Litl: 102 a: 3 Taunt. 439.) As the maxim applies, with certain specific restrictions, not only to the quality of, but also to the title to, land which is sold, the purchaser is generally bound to view the land and to enquire after and inspect the title deeds; at his peril if he does not.
162. In view of the peculiar facts and circumstances of the present case, in order to do justice to the parties, viz., petitioner, 1st respondent, the prospective buyers and the general public within the vicinity of the building, the Court should act as Parens Patriae. My view is fortified by the dictum of the Constitutional Bench of the Hon'ble Supreme Court in the case of Charan Lal Sahu vs. Union of India reported in AIR 1990 SC 1480, wherein, at paragraph- 35, it is held as under:
"35. There is the concept known both in this country and abroad, called parens patriae. Dr B.K. Mukherjea in his "Hindu 390 Law of Religious and Charitable Trust", Tagore Law Lectures, Fifth Edition, at page 404, referring to the concept of parens patriae, has noted that in English law, the Crown as parens patriae is the constitutional protector of all property subject to charitable trusts, such trusts being essentially matters of public concern. Thus the position is that according to Indian concept parens patriae doctrine recognized King as the protector of all citizens and as parent. In Budhkaran Chaukhani v. Thakur Prosad Shah [AIR 1942 Cal 331 : 46 CWN 425] the position was explained by the Calcutta High Court at page 318 of the report. The same position was reiterated by the said High Court in Banku Behary Mondal v. Banku Behary Hazra [AIR 1943 Cal 203 : 47 CWN 89] at page 205 of the report. The position was further elaborated and explained by the Madras High Court in Medai Dalavoi T. Kumaraswami Mudaliar v. Medai Dalavoi Rajammal [AIR 1957 Mad 563 : (1957) 2 391 MLJ 211] at page 567 of the report. This Court also recognized the concept of parens patriae relying on the observations of Dr Mukherjea aforesaid in Ram Saroop v. S.P. Sahi [1959 Supp 2 SCR 583 : AIR 1959 SC 951] at pages 598 and 599. In the "Words and Phrases" Permanent Edition, Vol. 33 at page 99, it is stated that parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons, but the words parens patriae meaning thereby 'the father of the country', were applied originally to the King and are used to designate the State referring to its sovereign power of guardinaship over persons under disability. (emphasis supplied) Parens patriae jurisdiction, it has been explained, is the right of the sovereign and imposes a duty on sovereign, in public interest, to protect persons under disability who have no 392 rightful protector. The connotation of the term parens patriae differs from country to country, for instance, in England it is the King, in America it is the people, etc. The Government is within its duty to protect and to control persons under disability. Conceptually, the parens patriae theory is the obligation of the State to protect and takes into custody the rights and the privileges of its citizens for discharging its obligations. Our Constitution makes it imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert and secure their rights, the State must come into picture and protect and fight for the rights of the citizens. The Preamble to the Constitution, read with the Directive Principles, Articles 38, 39 and 39-A enjoin the State to take up these responsibilities. It is the protective measure to which the social welfare state is committed. It is necessary for the State to ensure the fundamental rights in 393 conjunction with the Directive Principles of State Policy to effectively discharge its obligation and for this purpose, if necessary, to deprive some rights and privileges of the individual victims or their heirs to protect their rights better and secure these further. Reference may be made to Alfred L. Snapp & Son, Inc. v. Puerto Rico [73 L Ed 2d 995 : 458 US 592 : 102 SCR 3260] in this connection. There it was held by the Supreme Court of the United States of America that Commonwealth of Puerto Rico have standing to sue as parens patriae to enjoin apple growers' discrimination against Puerto Rico migrant farm workers. This case illustrates in some aspect the scope of parens patriae. The Commonwealth of Puerto Rico sued in the United States District Court for the Western District of Virginia, as parens patriae for Puerto Rican migrant farmworkers, and against Virginia apple growers, to enjoin discrimination against Puerto Ricans in favour of Jamaican 394 workers in violation of the Wagner-Peyser Act, and the Immigration and Nationality Act. The District Court dismissed the action on the ground that the Commonwealth lacked standing to sue, but the Court of Appeal for the Fourth Circuit reversed it. On certiorari, the United States Supreme Court affirmed. In the opinion by White, J., joined by Burger, C.J. and Brennan, Marshall, Blackmun, Rehnquist, Stevens, and O'Connor, JJ., it was held that Puerto Rico had a claim to represent its quasi- sovereign interests in federal court at least which was as strong as that of any State, and that it had parens patriae standing to sue to secure its residents from the harmful effects of discrimination and to obtain full and equal participation in the federal employment service scheme established pursuant to the Wagner- Peyser Act and the Immigration and Nationality Act of 1952. Justice White referred to the meaning of the expression parens patriae. According to Black's Law 395 Dictionary, 5th edn. 1979, page 10003, it means literally 'parent of the country' and refers traditionally to the role of the State as a sovereign and guardian of persons under legal disability. Justice White at page 1003 of the report emphasised that the parens patriae action had its roots in the common law concept of the "royal prerogative". The royal prerogative included the right or responsibility to take care of persons who were legally unable, on account of mental incapacity, whether it proceeds from nonage, idiocy or lunacy to take proper care of themselves and their property. This prerogative of parens patriae is inherent in the supreme power of every state, whether that power is lodged in a royal person or in the legislature and is a most beneficent function. After discussing several cases Justice White observed at page 1007 of the report that in order to maintain an action, in parens patriae, the State must articulate an interest apart from the interests of particular parties, 396 i.e. the State must be more than a nominal party. The State must express a quasi-sovereign interest. Again an instructive insight can be obtained from the observations of Justice Holmes of the American Supreme Court in the case of State of Georgia v. Tennessee Copper Co. [51 L Ed 1038 : 206 US 230 (1906) : 27 SCR 618] , which was a case involving air pollution in Georgia caused by the discharge of noxious gases from the defendant's plant in Tennesee. Justice Holmes at page 1044 of the report described the State's interest as follows:
"This is a suit by a State for an injury to it in its capacity of quasi- sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have 397 to pay individuals before it could utter that word, but with it remains the final power....
... When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done.
They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests..."
163. In view of the peculiar facts and circumstances of the present case, until re-survey of the site property of the petitioner is made by the Survey of India or KSRSAC, the interest of the prospective buyers should be protected. Ultimately, after re-survey, if the authorities find that there is no violation of the construction made by the petitioner in terms of the NOC i.e., 62mtrs height and 870 mtrs site elevation i.e., 932 398 m AMSL, then the question of taking any action by the 1st respondent would not arise. If, after re-survey, in the presence of the petitioner and other interested respondents, if the construction made is found to be in violation of the terms and conditions of the NOC, it is for the 1st respondent, to take action against the illegal construction, if any, after providing opportunity to the petitioner and affected/interested respondents/general public and in accordance in with law. In those circumstances, it is the duty of the petitioner to accommodate the prospective buyers in any other flats, if available in the construction made within 932m AMSL and if not available, it is for the prospective buyers to take appropriate action to recover the amount already paid, if any, in terms of the agreement or sale deeds and recover the same before the appropriate competent Court of law.
399
164. Learned Counsel for respondent No.1 contended that 'what may not be done under the provisions of the Act may not be permitted to be done by invoking Article 226 of the Constitution of India as held by the Hon'ble Supreme Court in the case of Santosh Kumar -vs- Central Warehousing Corporation and Another reported in AIR 1986 SC 1164 wherein at paragraph-4 it is held that "there cannot be any possible doubt that the scheme of the Act is that, apart from fraud, corruption or collusion, the amount of compensation awarded by the Collector under Section 11 of the Act may not be questioned in any proceedings either by the Government or by the Company or Local Authority at whose instance the acquisition is made. Section 50(2) and Section 25 of the Act lead to that in inevitable conclusion. Surely what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Article 226. Article 226 is not meant to avoid or 400 circumvent the process of the law and the provisions of the statute. This Court has no quarrel with the law laid down by the Hon'ble Supreme Court. It is well settled that what is not provided under the provisions of any particular Act cannot be done under Article 226 of the Constitution of India. Granting relief is prohibited by the Act. Admittedly, in the present case, the petitioner is seeking to quash the cancellation of NOC dated 16th August, 2013 as per Annexure-Q mainly on the ground that the petitioner has not violated the conditions of the grant and not constructed illegally with the maximum height permitted under the NOC. This Court has to verify from the records whether the petitioner has violated the terms and conditions of NOC and whether the 1st respondent was justified in canceling the entire NOC including the permissible construction granted. Therefore, the said judgment relied upon by the learned Counsel for the 1st respondent has no application to the facts and circumstances of the present case. 401
165. Another judgment relied upon by the learned Counsel for the 1st respondent in the case of the Martin Burn Ltd., -vs- Corporation of Calcutta reported in AIR 1966 SC 529 at paragraph-8 is to the effect that Court has no power to ignore the provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not. This Court has no quarrel with the law laid down by the Hon'ble Supreme Court in the facts and circumstances of the said case, as the issue in the present case is, only construction made by the petitioner, is in violation of the alleged NOC or not. Therefore, the said judgment is also not applicable to the facts and circumstances of the present case.
166. Another judgment relied upon by the learned Counsel for the 1st respondent in the case of Maharashtra State Board of Secondary and Higher 402 Secondary Education and Another -vs- Paritosh Bhupesh Kurmarsheth, etc., reported in AIR 1984 SC 1543 is to the effect that subordinate legislation must be read to give effect to the provisions of the statute and should not substitute its own opinion. The said case has no application to the facts and circumstances of the present case.
167. The other two judgments relied upon by the learned Counsel for the 1st respondent in the case of Madhukar Sadbha Shivarkar -vs- State of Maharashtra & Others reported in (2015) 6 SCC 557 and in the case of T. Vijendradas and Another - vs- M. Subramanian and Others reported in (2007)8 SCC 751 is with regard to fraud vitiates the entire proceedings. Though in the present case, the 1st respondent has alleged that the petitioner had played fraud on it while filing the application giving wrong data, the same is denied by the petitioner contending 403 that the 1st respondent after considering the entire material on record and considering the certificates issued by the competent authorities i.e., M/s. Precision Surveys (India) Pvt. Ltd., and Dr. Ambedkar Institute of Technology as per Annexures- E, E4 and E5 has come to the conclusion that the construction to be made by the petitioner is only in accordance with the NOC i.e., 870 meters (site Elevation) + 62 meters (height of the structure) i.e., 932 meters above mean sea level (AMSL) and not violative. Therefore, the said case referred to by the learned Counsel involves completely different facts which require evidence including the question of correct dates/age, whether land was held or occupied for cultivation, concurrent decision by three statutory authorities on the basis of the material available with them, whether trusts were public trust or private trust, non supply of road/breach of contact, etc. Admittedly, the present case does not involve disputed questions of fact or issues which cannot be decided in the writ 404 petition. The issue in the present case relates to the arbitrary action and acts of omission and commission by the 1st respondent relating to the height of NOC and cancellation thereof without ascertaining the adverse affect on the aircraft operations as alleged by the petitioner. Therefore, the said judgments have no relevancy to the facts and circumstances of the present case.
168. Another judgment relied upon by the learned Counsel for the 1st respondent is State of UP and Others -vs- Harish Chandra and Others reported in AIR 1996 SC 2173 at para-10 to the effect that no mandamus can be issued to the relief sought for to the Government to refrain from enforcing the provisions of law or opposed to law. This Court has no quarrel with the law laid down by the Hon'ble Supreme Court that, if the party, who has come to the Court, has not made out any legally enforceable right, no mandamus can be 405 issued. Therefore, the said judgment is in no way assistance to the case of the 1st respondent.
169. The learned Counsel for the 1st respondent relied upon the dictum of the Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited -vs- Kirusa Software Private Limited [Civil Appeal No.9405/2017 Decided on 21.9.2017] reported in (2017) 11 Scale 754 (SC) with regard to paragraph-29. Relying upon the said judgment, the learned Counsel interpreted the word 'and' which can also be read as 'or' having regard to the context as can be seen from para-3 of NOC dated 28.10.2011, which was governed by the Notification and if the Notification does not provide for separate Aeronautical Study to find out independently whether it affects aircraft operations, no person including NOC Authority can permit any such study as it is prohibited by the statute. The said judgment does not interpret height NOC or related regulations. The 406 said judgment is with regard to the legislative intent of Section 8 (2)(a) of the Insolvency and Bankruptcy Bill, 2015 and to avoid anomalous situation or hardship if 'and' was not read as 'or'. The said judgment has no application to the facts and circumstances of the present case.
170. The learned Counsel further relied upon the dictum of the Hon'ble Supreme Court in the case of New Okhla Industrial Development Authority -vs- Kendriya Karamchari Sahkar Grih Nirman Smiti reported in (2006) 9 SCC 524 with regard to paragraphs 12 to 15 to the effect that suppression of material facts disentitles any relief and no mandamus can be issued in respect of disputed questions of fact. It is no doubt true that any person who suppresses the material facts is not entitled to any relief while exercising the power under Article 226 of the Constitution of India and no mandamus can be issued 407 in respect of disputed question of facts. The petitioner is seeking quashing of cancellation of NOC on the ground that the 1st respondent cannot cancel the NOC mainly on the ground that the data furnished by the petitioner while submitting the application that 870 meters vastly differs from the data available with the 1st respondent and the advisory was issued admittedly, after a lapse of one year i.e., on 15th September 2012. Therefore, the said judgment has no application to the facts and circumstances of the present case.
171. The learned Counsel for the 1st respondent also relied upon an unreported judgment of the Delhi High Court in the case of Shristi Infrastructure Development Corporation Limited and Others -vs- Union of India and Others in W.P.(C) 7652/2015 & C.M.No.14940/2015 decided on 25.4.2016 by the learned Single Judge with regard to reduction of height wherein the Delhi High Court considering the provisions 408 of Section 9A of the Act has held that the process after all cannot be made an endless one, particularly when the petitioners by illegally raising construction and enjoying the benefit thereof are interested in making such process of reconsideration an indefinite one. In fact, the learned Judge tend to agree with the contention of the Senior Counsel for respondent No.2 AAI of the petitioners therein, having illegally gone ahead with the construction, being not entitled to any relief. The jurisdiction of the Court under Article 226 of the Constitution of India is an equitable jurisdiction and it is again a settled principle of law that one who comes in equity must have come with clean hands and a clean conscience. The equitable jurisdiction of this Court cannot be permitted to be abused by those indulging in illegal and unauthorized construction in contravention of the rules. The petitioners therein had no reason to, notwithstanding their NOC having lapsed, go ahead with the construction and that too construction beyond 409 the height of 88.64 meters AMSL which had been communicated to them on 13th December, 2010. The petitioners by their such conduct alone were disentitled from any relief from that Court. Admittedly the said order passed by the learned Single Judge is pending in LPA 503/2016 before the Division Bench of Delhi High Court. In the present case, it is the specific case of the 1st respondent that while withdrawing the NOC., it is stated that during the random check up, the site elevations were compared with that given in the Survey of India (SOI) maps and it was observed that the declared elevation of 870 meters AMSL from the above mentioned site varies. Consequently, the actual elevation keeps assigned as 890 meters AMSL and the petitioner has given the application as 870 meters which vastly differs from the data available with the HAL-1st respondent. In the present case, it has to be verified whether the petitioner has violated the conditions of the NOC and has constructed the building 410 beyond 870 meters site elevation + 62 meters height of the structure i.e., 932 meters above mean sea level as observed in the impugned cancellation NOC after the resurvey done by the Karnataka State Remote Sensing Application Centre or Survey of India as desired by HAL. Therefore, the said judgment has no application to the facts and circumstances of the present case.
172. The learned Counsel for the 1st respondent also relied upon the latest judgment of the Division Bench of the Bombay High Court in the case of Siddheshwar Sahakari Sakhar Karkhana Ltd., -vs- Director and District Magistrate, District Solapur and Others reported in 2018 SCC Online Bom 2239 wherein it was a case where NOC granted for 493.96 meters was restricted, but the petitioner inspite of the communication, constructed RCC Chimney of 90 meters height violating the NOC and in breach of Rules. Therefore, it was held that the assertions of the 411 petitioner, who says that it will not shift its Chimney but now a new Airport site is identified so let the Airport shift from the existing site at Hotgi to Boramani. Even otherwise, until then this Airport is not going to be made functional. Thus, the regional connectivity scheme is sought to be defeated by the petitioner and it seems to be more influential than the respondents for it goes on then alleging discrimination and how only VIPs were allowed to use it or permissions were given for the aircrafts carrying them to the land with the obstacle at site. This is a clear case of compromise with air safety by accommodating a wrong-doer. Accordingly, the Division Bench of Bombay High Court rightly dismissed the writ petition. If after resurvey, as sought for by the 1st respondent HAL is conducted by the Karnataka State Remote Sensing Application Centre or Survey of India, the truth will come out, whether the petitioner has constructed building unauthorisedly in violation of the permissible limit granted in terms of NOC. 412
XI. Conclusion
173. For the reasons stated above, the 1st point raised in the present writ petition has to be answered in the negative holding that the 1st respondent-HAL is not justified in canceling the NOC for the entire building including the permitted construction 62 mtrs (17 floors i.e., 932 mtrs AMSL) ignoring the recommendation of HAL NOC Committee and undertaking of the petitioner. Accordingly, the petitioner has made out a case to refer the matter to the competent authority-Karnataka State Remote Sensing Application Centre ('KSRSAC') or Survey of India for resurvey of the site property of the petitioner for the Digital Global Positioning Systems Field Survey Work to provide Latitude, Longitude and AMS levels, as sought for by the 1st respondent in series of advisories as well as in the main order of cancellation. Therefore, it is necessary to direct for resurvey of the site in the presence of the petitioner and 413 the concerned officers of the HAL or any authorized agency by the first respondent, in the facts and circumstances of the present case, subject to the petitioner depositing necessary charges for resurvey, either before the competent authority, KSRSAC or before the Survey of India and the 1st respondent-HAL, shall proceed further in accordance with law.
174. It is also not in dispute that the 1st respondent has issued NOC dated 28.10.2011 with a condition that, the petitioner shall construct the building to height 62m above ground level, so that the top of the proposed structure when erected shall not exceed 870 m (site elevation) + 62m (height of the structure) i.e., 932m AMSL. Admittedly, the said NOC granted by the 1st respondent has not been challenged by the petitioner, nor filed any application to revise height permitted for construction and the same has reached finality. Now in the present writ petition, 414 petitioner is seeking a writ of mandamus to direct the 1st respondent to permit the petitioner to construct the building up to maximum height which does not affect Aircraft operations and to direct the 1st respondent to re-validate the NOC for a period of 5 years, which is nothing but, indirectly seeking regularization of the building constructed beyond 932 mtrs, in terms of NOC granted by the 1st respondent, which is impermissible and therefore, prayers (ii) and (iii) sought in the present writ petition are pre-mature, at this stage. Therefore, the mandamus sought for by the petitioner cannot be issued, unless the petitioner shows legally and judicially enforceable right as held by the Hon'ble Supreme Court in the case of Mani Subrat Jain etc. vs. State of Haryana and others reported in AIR 1977 SC 276, wherein at paragraph-9, it is held as under:
"9. The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for 415 a mandamus without a legal right. There must be a judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something".
For the reasons stated above, the point No.2 raised for consideration in the present writ petition has to be answered in the negative holding that the petitioner has not made out any prima-facie case to refer the dispute for Aeronautical study by the AAI or any other authorized agency, in view of the fact that the point No.1 raised for consideration in the present writ petition has been answered in the affirmative, holding that the site property in question requires to be resurveyed by the competent authority.
416
XII Result/Decision
175. For the reasons stated above, I pass the following order:
(i) The writ petition is allowed in part and the impugned cancellation order bearing No. ASC/ DGM (AO)/ 131/526/2013 dated 16th August 2013 passed by the 1st respondent -
HAL as per Annexure-AQ is hereby quashed, only in so far as cancellation of NOC dated 28.10.2011 for construction of the residential apartments/flats to a height of 62 meters above ground level (Coord: Latitude N12˚55'38.28"
Longitude EO77˚37'55.74''), so that the top of the proposed structure when erected shall not exceed 932 meters AMSL { 870 meters (site elevation) + 62 meters (Height of the structure)} as per Annexure-A. 417
(ii) The matter is remanded to the 1st respondent - HAL for re-survey of the site property of the petitioner in question either by the Survey of India or Karnataka State Remote Sensing Application Centre (KSRSAC), for the Digital Global Positioning Systems Field Survey Work to provide Latitude, Longitude and Above Mean Sea Level (AMSL).
(iii) The petitioner shall deposit the prescribed fee for re-survey of the site property in question, before the 1st respondent - HAL within a period of one month from the date of receipt of copy of this order. On such deposit, the 1st respondent shall take necessary steps to re-
survey the site property/building of the petitioner either by the Survey of India or Karnataka State Remote Sensing Application Centre (KSRSAC) after obtaining necessary consent from the petitioner.
418
(iv) The competent authority i.e, The Survey of India or Karnataka State Remote Sensing Application Centre (KSRSAC) after issuing notice to the parties to the lis, shall re-
survey the site property/building of the petitioner in presence of the parties within a period of six months from the date of receipt of a copy of this order, strictly in accordance with law and thereafter, based on such report shall proceed further in accordance with law.
(v) The 1st respondent - HAL shall not take any precipitative action against the petitioner in respect of the site property/apartments/flats in question until re-survey is made by the competent authority.
(vi) The petitioner shall not put up any further construction and shall not modify/alter/renovate/develop the building/apartments constructed in 419 the property in question. The petitioner shall not sell or agree to sell or enter into an agreement with third parties in whatsoever manner in respect of any portion of the building, till re-survey is made by the competent authority.
(vii) The writ petition is hereby
dismissed in so far as prayer Nos.2
and 3 as premature, with liberty to
the petitioner to file necessary
application at the
appropriate/relevant point of time before the competent authority, if permissible in accordance with law.
(viii) The respondents, who claim to be agreement holders/ purchasers of flats from the petitioner, are at liberty to approach the petitioner for the alternative flat, if any constructed within the permissive limit as per the NOC dated 28.10.2011 vide Annexure-A. OR In 420 the alternative, it is needless to observe that they are at liberty to approach the competent Court for appropriate relief in accordance with law.
(ix) All the contentions of the parties with regard to aeronautical study are kept open to be urged before the appropriate Court/authority at the relevant point of time, if need arises, in future in accordance with law.
XIII. Acknowledgment
176. In crafting this judgment, the erudition of the learned Senior Counsel and other Counsel, who have appeared for the parties on 83 various hearing dates, their industry, vision, sincerity and dedication and above all, dispassionate objectivity in discharging their role as Officers of the Court is commendable. 421
177. This Court acknowledges the valuable assistance rendered by Sri Udaya Holla, learned Senior Counsel along with Sri Kamlesh Sampat; Sri Ananth Mandagi, learned Senior Counsel along with Sri Pradeep Sawkar; Sri Sajan Poovayya, learned Senior Counsel along with Smt. Nalina Mayegowda; Sri Aditya Sondhi, learned Senior Counsel along with Sri Karan Joseph and the same is placed on record.
Sd/-
JUDGE Nsu/ Gss/ kcm