The Bombay High Court on Friday set aside the decision of an Appellate Committee of the Airports Authority of India (AAI), which imposed restrictions on the height of buildings within a two km radius of both the Airport Surveillance Radars (ASRs) that service the Chhatrapati Shivaji Maharaj International Airport.
The High Court held that the committee imposed the restrictions without having any jurisdiction or power.
A bench of Justices Shahrukh Kathawalla and Burgess Colabawalla, however, noted that the powers to restrict the height of buildings near airports lies with the Union government and such restrictions could be introduced only after following due procedure.
The significant order was passed while dealing with petitions filed by three developers -- Kalpatru Limited, United Industrial House Premises Co. Soc. Ltd and Klassik Homes Pvt. Ltd -- challenging the April 23, 2019, decision of the appellate committee imposing reduced height restrictions.
The developers argued that the committee had no powers to impose such restrictions and that they were entitled to maximum permissible height. They also challenged the permissions granted to them to construct their buildings to a height of not more than 45 meters, while they had sought to construct up to 57 meters.
According to the petitioners, in September 2015, the Civil Aviation Ministry laid down rules for construction activities in the vicinity of airports. They contended that under these rules, they could avail of maximum permissible height because their plots satisfied the requirement of being more than 2 km away from any one of the surveillance radars that service Mumbai airport.
In April 2018, the Union government proposed to amend the 2015 rules and had invited objections and suggestions. One of the proposed amendments was to make the maximum permissible height available to a plot only if it is at a distance of more than 2 km away from all, and not just any one, of the ASRs that service an airport.
In April 2019, the Appellate Committee adopted the proposed amendment, and in May 2019, the three petitioners filed applications based on the provisions of the 2015 rules that were and are in force before the AAI seeking a No Objection Certificate for grant of highest permissible height.
In August, 2019 the AAI issued the NOC but granted reduced permissible top elevation, while relying on the decision taken by the Appellate Committee. The developers then moved the High Court.
Having considered the facts of the case, the judges noted that Aircraft Rules confer such powers only on the Union government and not the committee.
"We are of the view that the decision is entirely without authority of law and in excess of the jurisdiction and power of the committee. It is clear that in taking such a decision, the Committee was not acting as an appellate forum or authority exercising any quasi- judicial functions, for which purpose alone it was constituted," the judges said.
"The Committee does not have any rule making or general administrative power. In fact, the power to make rules is only with the Union government. Further, the power to issue directions to regulate and prohibit the height of buildings within a defined radius of the aerodrome is also with the Central Government. The other general power to issue directions under relevant laws is with the DGCA," the bench held.
The bench, however, maintained that the authorities took the decision only after considering the safety measures. "There is no doubt that it is for the authorities to take all aspects of safety into account when regulating activities within the vicinity of any airport, but in doing so they must act in accordance with the rules. If there are safety related concerns that require to be addressed, the authorities may do so by making appropriate rules and issuing appropriate directions as per the rules," the judges pointed out.
The judges further clarified that this order should not come in way of the authorities in introducing such rules. "However, the same must be done in accordance with the statutory framework," the judges held.
