M/S Chalet Hotels Limited vs M/S Hindustan Aeronautics Limited

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.

65

There 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.

167

HELD: 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:

186

(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.

188

The 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.

200

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