Gujarat High Court Directs Aeronautical Study Before Demolition Of Buildings Near Ahmedabad Airport Over Height Violations

The Gujarat High Court has directed an aeronautical survey of real-estate properties located near Ahmedabad International Airport which are alleged to be in violation of the prescribed elevation level, quashing notices which directed removal of construction prior to conduct of such survey.The court was hearing a batch of petitions seeking directions to the Airport Authority of India to get an aeronautical study by International Civil Aviation Organization at the expense of the petitioner, as prescribed in the Ministry of Civil Aviation (Height Restrictions for Safeguarding of Aircraft Operations) Rules, 2015, and thereafter take decision on demolition of construction as may be found infringing the safety standards for aircraft operations.The pleas sought a direction to AAI to consider appeal of the petitioner for revision of height clearance offline without insisting on removal of construction of 4.88 meters which is identified today as being over the permissible top elevation prescribed in No Objection Certificate dated 2.12.2020. The petitioners had approached the authorities to conduct the survey however their request was rejected. Justice Hemant M Prachchhak in his order said:"Upon considering the rival submissions of the parties, I am of the opinion that the prayer made by the petitioners for conducting an aeronautical survey/study—so as to assess whether the existing structure adversely affects, or is likely to significantly affect, the safety and regularity of aircraft operations at the concerned airport—deserves consideration, even while keeping in mind the objections raised by the respondents...Considering another angle, the decision of the respondents with regard to denying the request made by the petitioners is completely irrational and arbitrary. In the case of identically or similarly situated persons in the nearby area, the authority has considered such cases, however, the request made by the petitioners was turned down only on the ground that first they shall remove the disputed construction, and only thereafter the request for an aeronautical study can be considered, which itself is irrational and arbitrary".The petitioners are real estate firms/developers who claimed that they had developed projects near the Ahmedabad Airport, after obtaining due permissions from Ahmedabad Municipal Corporation. However Ahmedabad International Airport Limited, wrote to the District Collector claiming that certain buildings had exceeded the height permitted–i.e. 102.7 meters, under the NOC issued by the Airports Authority of India. The petitioners claimed that alleged violation has arisen not due to any unauthorized construction but on account of variation in the recorded ground elevation and thus sought for an aeronautical survey, before directing removal of construction. The court observed that quasi-judicial executive functionary must, while determining the rights and obligations of parties before it, do so in accordance with the principles of natural justice. In the present case the court found that the petitioners have pointed out the decision rendered by the Delhi High Court (DBS Reality vs. Union of India 2018) in a similar set of facts. However, the Appellate Committee without considering it directed the petitioners to first remove the construction as directed by the authority. This the court said amounts to violation of Article 14 and 16 rights under the Constitution. "The insistence of the respondents that the petitioners must first remove the objectionable portion of the construction before any such survey is conducted is unjustified and untenable in the facts of the present case. In order to arrive at a just and proper conclusion, the request of the petitioners ought to be considered in the first instance, and an aeronautical survey should be conducted at their cost. Accordingly, the stand taken by the respondents cannot be sustained. A perusal of GSR 751(E), namely the Ministry of Civil Aviation (Height Restrictions for Safeguarding of Aircraft Operations) Rules, 2015, reveals that the same incorporates the concept of “shielding criteria” and provides for the conduct of an aeronautical study as well as a CNS simulation study for the purpose of assessing the maximum permissible height of structures, particularly in cases where such structures fall within the shadow of a higher natural terrain or permanent structure. The maximum permissible height of a structure may be determined on the basis of the said shielding criteria, provided that the proposed or existing structure is located in proximity to an obstacle of equal or greater height and does not pose any risk to aviation safety," the court said. The court thus quashed the notices directing that the objectionable construction be removed before carrying out the aeronautical survey/study. The court directed the respondents to carry out the aeronautical survey at the petitioners' cost, as early as possible. It further said...

Gujarat High Court Directs Aeronautical Study Before Demolition Of Buildings Near Ahmedabad Airport Over Height Violations

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