Bombay HC quashes AAI appellate panel decision on new criteria for permissible height

The petitioners had challenged the April 23, 2019, decision of the appellate committee. (File)

The Bombay High Court has set aside an April 2019 decision of the Airport Authority of India (AAI) appellate committee that prescribed the buildings within a distance of two kilometres from the two Airport Surveillance Radars (ASRs) of the Mumbai International Airport were bound by the restrictions of maximum permissible height. The court on Friday said the appellate committee lacked jurisdiction to impose such conditions and that it did not have any rule-making or general administrative powers.

A division bench of Justices S J Kathawalla and B P Colabawalla passed the judgement on three petitions moved by Kalpataru Ltd, United Industrial House Premises Co Soc Ltd and Klassik Homes Pvt Ltd, who are developing plots of land in the vicinity of the Mumbai International Airport. The petitioners had challenged the April 23, 2019, decision of the appellate committee.

The court noted that the central government, in April 2018, had proposed to amend the Height Restrictions for Safeguarding of Aircraft Operations Rules, 2015, and had sought suggestions and objections. The bench said one of the proposed amendments was based to make the maximum permissible height available to a plot under development only if it is at a distance of more than or beyond two kilometres from all the ASRs that service an airport. Thereafter, on April 23 last year, the appellate committee, after considering various objections and suggestions, in its meeting decided to adopt the said proposed amendment based on the 2018 Draft rules.

In May last year, the three developer petitioners filed applications based on the provisions of the 2015 Rules that were and are in force before the AAI, seeking no objection certificate for grant of highest permissible top elevation for their buildings.

Nearly three months after the applications were made, the AAI, relying on appellate committee’s decision, issued NOC to them, however, reduced the permissible top elevation. This prompted the aggrieved developers to move a plea before the High Court.

After hearing submissions, the bench observed, “We are of the view that the said decision is entirely without authority of law and in excess of the jurisdiction and power of the appellate committee. It is clear that in taking such a decision the appellate committee was not acting as an appellate forum or authority exercising any quasi-judicial functions, for which purpose alone it was constituted under the 2015 Rules.”

While the bench quashed and set aside the decision of the appellate committee, it clarified that by its order, the AAI was not directed to issue a revised NOC of any particular height and it can consider the applications for grant of NOC afresh within a period of four weeks as per the existing laws and regulations.