A request for aeronautical study of a structure to determine if it would adversely affect the operation of aeroplanes has to be considered on a case-to-case basis and there is no rule or policy which says that aeronautical study cannot be undertaken unless the excess height of the structure as against the permissible limit is demolished, the Delhi High Court has held.
Justice Vibhu Bakhru said so while directing the appellate committee of the Ministry of Civil Aviation to reconsider the request of a Mumbai-based real estate company, KGA Investments, to conduct an aeronautical study in respect of its building at Jogeshwari Vikhroli Link Road, Powai, 4 km from the aerodrome.
The company had moved court after the Appellate Committee for Height Clearance, Ministry of Civil Aviation, on July 31, 2018, rejected its request for conducting an aeronautical study in respect of its building whose height exceeded the maximum permissible top elevation by 3.52 m and further directed initiation of action as per the Aircraft (Demolition of Obstruction Caused by Buildings and Trees etc.) Rules, 1994.
The appellate authority was of the view that the aeronautical study cannot be conducted without the structure in excess of the permissible height being demolished.
“The contention, that Aeronautical Study cannot be undertaken unless the excess height is demolished, is not supported by any rule or even the stated policy. Sub-clause 5.1 of Schedule II to the said Rules (Ministry of Civil Aviation (Height Restriction for Safeguarding of Aircraft Operations) Rules, 2015) also clearly indicate Aeronautical Studies may be conducted to determine whether the existing body or proposed new body would adversely affect the safety or significantly affect the regularity of operations of aeroplanes,” said Justice Bakhru.
Before the high court, KGA Investments said the appellate committee had completely ignored the fact that the building has been constructed strictly in line with the NOC issued by the Airport Authority of India (AAI) and that the height of the structure had exceeded the permissible height only on account of the change in the elevation of the site, resulting from a change in the method adopted for measurement of the site elevation as way back in the year 2007, GPS was not readily available with the AAI or the Municipal Corporation.
The AAI, on the other hand, said aeronautical studies cannot be conducted if the height of the building has been raised in excess of the height permissible under the NOC.
KGA was represented by senior advocate Rajiv Nayar, along with the team from KN Legal, led by partner Kartik Nayar and associate Mohit Mahla, and team from Black Robe Chambers comprising Kunal Vajani, Paras Anand, Pratik Rajopadhye and Sarthak Sharma.
The AAI was represented by Digvijay Rai.
Before remanding the matter back to the committee, the court also noted that “The contention that the petitioner has constructed the building strictly as per NOC issued by the AAI, is erroneous. The petitioner is correct that it had constructed the building within the permissible limit AGL (Above Ground Level); however, admittedly, the overall height of the building now exceeds the maximum permissible height as per the NOC issued by the AAI”.
“It is not disputed that the increase in the height is on account of an incorrect measurement of the site elevation as recorded in the certificate dated 22.06.2007, issued by the Municipal Corporation; however, the AAI is not responsible for the same. The NOC dated 30.03.2010 issued by the AAI expressly indicates that the NOC was issued on the basis of the measurement of the site elevation as provided”.
No rule for demolition of structure before aeronautical study
On the aspect of the demolition of construction in excess of the permissible height limit, the court referred to the Ministry of Civil Aviation (Height Restriction for Safeguarding of Aircraft Operations) Rules, 2015 wherein sub-clause 5.1.1 says that request for Aeronautical Study is required to be considered on a case-to-case basis.
“It cannot be disputed that if the Appellate Committee is of the view that the building constructed in excess of the permissible limits presents a risk to aviation safety, no interference with the said decision would be warranted. However, it would be incumbent upon the Appellate Committee to examine this issue on a case to case basis,” said Justice Bakhru.
“In the present case, the building in question is located at a distance of 4 km from the aerodrome. The site is also not located above the conical surface or the inner horizontal surface (IHS). These would be the factors for the Appellate Committee to consider while deciding whether it was to demolish the building in excess of the height, as permitted, before considering the request for Aeronautical Studies,” he held.
KGA had, in May 2007, sought a site elevation certificate from the municipal corporation to certify the altitude/elevation of its plot and permissible height for the construction of the building. Consequently, the elevation of the plot was certified to be 24.85 m. Thereafter, the AAI granted an NOC for construction up to a height of 52.80 m. In 2010, a fresh NOC was issued for the height of 62.27 m.
After the completion of the construction of the building, the Municipal Corporation sent a letter to the Airport Operator (MIAL) last year requesting it to verify the top elevation of the building and a joint verification found that the elevation of the plot was 28.241 m, 3.56 m higher than the measurement of the site elevation as certified by the Municipal Corporation. Consequently, the height of the building also exceeded the maximum permissible top elevation by 3.52 m.
Read the Judgment Here