Full Judgment Text
suresh 4-WPGOO-5253.2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5253 OF 2017
Siddheshwar Sahakari Sakhar Karkhana
Ltd., through its Managing Director
Santosh Jaykumar Kumbhar .... Petitioner
Vs.
Collector and District Magistrate,
District Solapur & Others .... Respondents
WITH
WRIT PETITION [STAMP] NO.11873 OF 2018
Shree Siddheshwar Sahakari Sakhar
Karkhana Ltd. .... Petitioner
Vs.
Union of India & Others .... Respondents
WITH
WRIT PETITION NO.12131 OF 2017
Siddheshwar Rastriya Sakhar Kamgar
Union .... Petitioner
Vs.
The State of Maharashtra & Others .... Respondents
Mr. Y.S. Jahagirdar, Senior Advocate with Mr. S.C.
Wakankar for the Petitioner in WP5253/2017.
Mr. Vineet B. Naik, Senior Advocate with Mr. Yuwraj
D. Patil for the Petitioner in WP12131/2017.
Mr. S.B. Kalel, Assistant Government Pleader, for
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Respondent Nos.1 & 4 in WP5253/2017 and for
Respondent Nos.1 & 2 in WP12131/2017.
Mr. Deendayal G. Dhanure for Respondent No.2 in
WP5253/2017 and for Respondent No.3 in WP12131/
2017.
Mr. Anil C. Singh, Additional Solicitor General, with
Mr. Adwait Sethna, Ms Shilpa Kapil & Mr. Chidanand
Kapil for AAIRespondent No.3 in WP5253/2017 and
for Respondent No.4 in WP12131/2017.
Smt. S.V. Bharucha for Respondent No.5 in WP5253/
2017.
Mr. Girish Shrivastav, Jt. General Manager (AAI),
present in Court.
CORAM: S.C. DHARMADHIKARI &
SMT. BHARATI H. DANGRE, JJ.
DATE : AUGUST 06, 2018
ORAL ORDER ( Per Shri S.C. DHARMADHIKARI, J. ):
1. These petitions under Article 226 of the Constitution
of India have been filed by the petitioners Siddheshwar
Sahakari Sakhar Karkhana Limited through its Managing
Director and Siddheshwar Rastriya Sakhar Kamgar Union to
challenge the communication dated 1752017, issued by the
respondent/Airports Authority of India.
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2. That communication informs the petitioner/sugar
factory that the Airport at Solapur has to be made functional. If
that Airport at Solapur has to be made functional, then, facilities
have to be provided for the safe landing and takeoff of aircrafts
from the Runway of this Airport.
3. It is common ground that the petitioner in the first
two petitions is a sugar factory and in that sugar factory the
authorities found a Chimney of 90 metres height. That comes
directly in the way of approach to the Runway and, therefore,
for smooth and proper, so also safe landing of the aircrafts and
with a view to make the Airport functional, it is necessary to
remove the same from the site or reduce the height of the same
to the permissible limits.
4. On 1532017 itself, the Collector, District Solapur
was informed by the Department of General Administration,
Government of Maharashtra that there is a project styled as
Regional Connectivity Scheme of the Central Government. By
that, area connectivity has to be established so that major cities
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and towns having Airports are connected with each other and
from that Airport aircrafts can takeoff and land for carrying the
crew and passengers and cargo to nearby and adjoining States in
India.
5. As far as Maharashtra State is concerned, the
Airports have been identified. These Airports were already
constructed. The Runways also were laid. However, the other
facilities and amenities enabling the aircrafts to land and take
off were not provided for several reasons. That is how these
Airports were rendered nonfunctional. Resultantly, the public
funds investment running into several Crores of rupees was
wasted.
6. With great fanfare and inaugural ceremonies
presided over by none other than the Hon'ble Prime Minister of
India, the Central Government proclaimed that now even a
common man can fly and reach his destination by air. “Ude Desh
Ka Aam Naagrik” (“UDAN” for short) was the scheme and by
which the dreams of thousands of people was to come true and
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equally the Regional Connectivity was to be achieved.
7. The petitioner/sugar factory was informed that it
should either reduce the height of the Chimney or remove it
altogether as the same is directly coming in the Flying Zone. If
that is coming within the Flying Zone, then that cannot be
allowed to stand. It is the question of safety of passengers and to
avoid any untoward incident that such structures have to be
removed.
8. In pursuance of the directions from the State
Government, on 642017 the Managing Director of the
petitioner/sugar factory was informed that within a period of
one month it should remove its Chimney or bring its height
within the permissible limits else coercive steps would have to
be taken.
9. We do not see how the petitioner/sugar factory
could have then approached the State of Maharashtra or the
State Government. Be that as it may, it was advised to address a
representation on 1242017 to the Secretary to the Chief
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Minister of the State.
10. In this representation, copy of which is at page 74,
the petitioner did not dispute that, in the month of September,
2015 a meeting was convened by the Department of Civil
Aviation in which Solapur Airport was identified as a Class “C”
Airport. The petitioner denied that the Chimney comes in the
way of smooth landing and takeoff of the aircrafts. In fact, it is
not within the Funnel Zone. Hence the petitioner disputed the
contents of the communication from the State Government and
the District Collector. On the other hand, it asserted that it
applied for a No Objection Certificate (“NOC” for short) to the
Airports Authority of India (“AAI” for short). That proposal was
received and on 1722017 that proposal was accepted.
11. This proposal was forwarded and on which on
1722017 the AAI had communicated to the petitioner its no
objection in the following terms:
“1. This NOC is issued by Airports Authority of India
(AAI) in pursuance of responsibility conferred by and as
per the provisions of Govt. of India (Ministry of Civil
th
Aviation) order GSR751 (E) dated 30 Sep. 2015 for Safe
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and Regular Aircraft Operations.
2. This office has no objection to the construction of
the proposed structure as per the following details:
NOC ID: SOLA/WEST/B/121316/186296
Applicant Name Dharmraj A Kadadi*
Site Address New Survey No.21/4 and Old Survey *
No.21/A At Post Tikekarwadi Tal North
Solapur District Solapur, At Post
Tikekarwadi Tal North Solapur District Sol,
Solapur, Maharashtra
Site Coordinates 75 56 49.I17 36 50.2,*
Site Elevation in mtrs
AMSL as submitted by
Applicant*
463 M
Permissible Top
Elevation in mtrs Above
Mean Sea Level (AMSL)
493.96 M (Restricted)
As provided by applicant*
3. This NOC is subject to the terms and conditions as
given below:
a. Permissible Top Elevation has been issued on the
basis of Site coordinates and Site Elevation submitted by
Applicant. AAI neither owns the responsibility nor
authenticates the correctness of the site coordinates & site
elevation provided by the applicant. If at any stage it is
established that the actual data is different, this NOC will
stand null and void and action will be taken as per law.
The office incharge of the concerned aerodrome may
initiate action under the Aircraft (Demolition of
Obstruction caused by Buildings and Trees etc.) Rules,
1994.
b. The Structure height (including any superstructure)
shall be calculated by substracting the Site elevation in
AMSL from the Permissible Top Elevation in AMSL i.e.
Maximum Structure Height = Permissible Top Elevation
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minus () Site Elevation.
c. The issue of the 'NOC' is further subject to the
provisions of Section 9A of the Indian Aircraft Act, 1934
and any notifications issued thereunder from time to time
including the Aircraft (Demolition of Obstruction caused
by Buildings and Trees etc.) Rules, 1994.
d. No radio/TV Antenna, lighting arresters, staircase,
Mumtee, Overhead water tank and attachments of fixtures
of any kind shall project above the Permissible Top
Elevation of 493.96 M (Restricted), as indicated in para 2.
e. Only use of oil fired or electric fired furnace is
permissible, within 8 KM of the Aerodrome Reference
Point.
f. The certificate is valid for a period of 7 years from
the date of its issue. If the construction of
structure/Chimney is not commenced within the period, a
fresh 'NOC' from the Designated Officer of Airports
Authority of India shall be obtained. However, if
construction work has commenced, onetime revalidation
request, for a period not exceeding 8 years from the date of
issue of NOC in respect of building/structure and for a
period not exceeding 12 years from the date of issue of
NOC in respect of chimney, may be considered by AAI. The
date of completion of the Structure should be intimated to
this office.
g. No light of a combination of lights which by reason
of its intensity, configuration or colour may cause
confusion with the aeronautical ground lights of the
Airport shall be installed at the site at any time, during or
after the construction of the building. No activity shall be
allowed which may affect the safe operations of flights.
h. The applicant will not complain/claim
compensation against aircraft noise, vibrations, damages
etc. caused by aircraft operations at or in the vicinity of
the airport.
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i. Day markings & night lighting with secondary
power supply shall be provided as per the guidelines
specified in chapter 6 and appendix 6 of Civil Aviation
Requirement Series 'B' Part I Section 4, available on DGCA
India website: www.dgca.nic.in .
j. The applicant is responsible to obtain all other
statutory clearances from the concerned authorities
including the approval of building plans. This NOC for
height clearances is to ensure the safe and regular aircraft
operations and shall not be used as document for any
other purpose/claim whatsoever, including ownership of
land etc.
k. This NOC has been issued w.r.t. the Civil
Airports. Applicant needs to seek separate NOC from
Defence, if the site lies within their jurisdiction.
l. In case of any discrepancy/interpretation of NOC
letter, English version shall be valid.
m. In case of any dispute w.r.t. site elevation and/or
AGL height, top elevation in AMSL shall prevail.”
12. From a bare perusal of this NOC, it is evident that
the permissible Top Elevation in metres Above Mean Sea Level
(“AMSL” for short) was 493.96 metres (restricted). This is thus a
conditional NOC. The petitioner is well aware of this
communication. We do not see how it still asserted before the
State Government that it has a NOC to construct a Chimney of
90 metres. Far from such a permission, the AAI by the above
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communication, styled as a NOC, restricted the height.
13. On 732017, the petitioner addressed a
communication to the General Manager, Airports Authority of
India, and the same reads as under:
“Respected Sir,
We are a CoOperative Society of Industrial complex
engaged in Manufacturing of Sugar, Alcohol & Kraft
Paper operating for past 45 years in Solapur
(Maharashtra). As a part of business expansion, we are
establishing a 38 MW Co–Generation Power Plant in the
existing Sugar Complex. We obtained necessary approvals
from Govt of Maharashtra and Gov of India.
As a part of Project, we are installing a Boiler of 200 TPH
capacity. We are required to construct 90 Meter RCC
chimney as per MPCB Consent to Establish NOC
Condition (NOC Ref: 1.0/BO/CAC
CELL/RO(PUNE)E/CAC370 DT 28.1.2014)
With reference to above cited subject, we had already
submitted proposal of construct RCC chimney of 90 Meter
height from FFL. We had already paid the appeal fee
Rs.2,24,720/ by DD No.018414 Dated 16/10/2014
drawn on Axis Bank in favour of Airport Authority of
India along with relevant document.
As per discussions at your office dated 30.08.2016, it was
informed that our case is under active consideration. We
were also advised to approach Mumbai office of AAI, as a
first step for grant of NOC, and which we did and the said
office has issued NOC for the height as per jurisdiction.
The copy of the said NOC is attached.
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You are requested to consider our application for grant of
NOC.”
Thus, in this communication it is admitted that the proposal was
to construct RCC Chimney of 90 metres height. Reliance was
placed on the consent of the Maharashtra Pollution Control
Board (“MPCB” for short).
14. The petitioner was aware that this communication
could not have altered the earlier decision of the AAI.
15. Hence, on 1042017 (page 28A) the AAI reiterated
its decision and communicated to the petitioner that there is no
question of going back on its NOC. In fact, by this
communication, while reiterating the contents of the NOC and
taking the petitioner's request as an appeal, the AAI
communicated that the petitioner's case was reexamined in
detail, data was collected from Aerodrome Ground Aid,
procedure for Air Navigation Operations and Communication,
Navigation and Surveillance criteria, Permissible Top Elevation
approved by the Competent Authority is 493.96 metres AMSL.
It is in these circumstances that the petitioner was informed that
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it is not possible to clear the height and the communication was
not to be construed as a NOC. In any event, the revised height
clearance to the Local Municipal Bodies was also relied upon.
16. Then, there was a NOC for height clearance dated
1752017 and copy of which is found at page 28B. The
petitioner's request was reexamined by the AAI and with this
communication it treated the matter as closed.
17. Then, there is a Notification (Exhibit “D”, page 29)
dated 3092015, issued by the Ministry of Civil Aviation.
18. Learned Senior Counsel appearing for the petitioners
in above petitions do not dispute that in the Notification/Rules,
the definition of the term “aerodrome elevation” {see Clause
3(iii)} means the elevation of the highest point of the landing
area as specified in Schedule III to Schedule VII is set out. There
is a “Colour Coded Zoning Map” which is also a term defined
and referable to Schedule IX of the Rules. The term “No
Objection Certificate” is defined in Clause 3(viii) thereof. Then
the relevant and material definition is of the term “structure”. As
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per Clause 3(ix) that definition reads as under:
“(ix) “structure” includes building, mast, tower,
chimney, poles, transmission lines, elevated roads or
viaducts or bridges and elevated railway lines, wind farms
and all other manmade structures;”
19. It is undisputed, therefore, that the definition
includes a Chimney. Once no structure shall be constructed or
erected, or any tree planted or grown on any land within a
radius not exceeding 20 kms. from the Aerodrome Reference
Point of the civil and defence aerodromes, as specified in
Schedule III to Schedule VII, without obtaining a NOC for the
height clearance, then, by Clause 4 of this Notification exception
is made only in the cases specified in subrule (2) of Rule 7 of
the Ministry of Civil Aviation (Height Restrictions for
Safeguarding of Aircraft Operations) Rules, 2015. That is in
cases of those aerodromes where the Colour Coded Zoning Maps
have been issued and the Local, Municipal or Town Planning
and Development authorities, in accordance with the height
specifications, provided a Colour Coded Zoning Maps, approved
the construction of the structure as per the existing building
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regulations or bye laws or any other law for the time being in
force, but there is a proviso to subrule (2) of Rule 7 by which
no approval can be given by the Local authorities as also the
Development authorities for sites which lie in approach, take off
and transitional areas of an airport or in any other area, marked
in the Colour Coded Zoning Map for the compulsory obtaining
of NOC from the Designated Officer or Authorised Officer.
20. A full procedure is, therefore, laid down in these
Rules and which also provides for the remedy of an appeal to
the aggrieved party.
21. We do not, therefore, see how the petitioner could
have claimed that its Chimney of 90 metre height does not, in
any manner, violate or breach these Rules. That these Rules are
very elaborate and concern the safety of aircraft operations,
then, all the more we do not think we should allow the
petitioner to rely on the NOC from the MPCB, or some
understanding given to it through meetings with the said
authorities.
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22. On Writ Petition No.5253 of 2017, when it was
initially moved, a Division Bench of this Court heard both sides
and a detailed order was passed. On 1082017, a request was
made to allow the petitioner to approach the Chairman,
Appellate Committee of respondent No.3 and request it to pass
an order on the pending application. This was after being aware
of the refusal by this Court of any interim relief on 452017.
The order of 452017 is fairly detailed and reads as under:
“1) Heard the learned Counsel for the respective parties.
2) The petitioner is being aggrieved by letter
th
communication dated 6 April, 2017 issued by Respondent
th
No.1Collector Sholapur and order dated 15 March,
th
2017. By order dated 15 March, 2017 the Under
Secretary, Government of Maharashtra, Mantralaya,
Mumbai has informed the Collector, Sholapur that all
structures beyond permissible limit near Sholapur Airport
should be demolished. In view of the said direction given
by the Under Secretary, State of Maharashtra, the
th
Collector by letter dated 6 April, 2017 informed the
Managing Director of the Petitioner to remove the
Chimney which was coming in the approach way of the
Runway within a period of one month.
3) Shri Apte, learned Senior Counsel for the Petitioner
submits that height of the chimney is about 90 meters and
it is slightly beyond the permissible limit. It is submitted
that they have approached the Airport Authority of India,
Delhi seeking relaxation of the said restriction.
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4) It is quite well settled that no structure shall be
constructed or erected within a radius not exceeding
twenty kilometers from the Aerodrome Reference Point of
the civil and defence aerodromes. It is admitted position
that Chimeny is located in the approach/take off area.
5) The Airport Authority of India has issued NOC in
respect of construction of proposed structure which is
below 463 meters and Permissible Top Elevation in 493.96
(restricted) meters Above Mean Sea Level (AMSL). It is
settled position in law while calculating this Permissible
Top Elevation, it has to be done from the Mean Sea Level.
This is done by using special equipment to find out
whether the structure or the height of the structure is
above from the Mean Sea Level.
6) These restrictions have been imposed taking into
consideration safety of the passengers in the Aircraft and
overall safety of people residing in the said area where the
Airport is situated. Shri Apte, learned Senior Counsel
appearing on behalf of the petitioner has submitted that
they have applied to the Airport Authority of India seeking
requisite permission. The said application is pending.
7) The petitioner may apply to the said Airport
Authority of India, New Delhi to seek stay of the impugned
order. We are not inclined to stay the said order.
8) In the present case, the respondents to file their
reply before the next date.
th
Stand over to 12 June, 2017.”
23. In terms of both these orders, all that was permitted
was to approach the authorities or seek relief in terms of the
pending application. Merely because the respondents did not file
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a reply or did not report about the outcome of the pending
application, this Court could not have been persuaded to direct
otherwise.
24. On 10112017, when both the petitions (WP
Nos.12131 and 5253 of 2017) were placed before the Division
Bench, it was stated that there is a communication from the AAI
which was annexed to the additional affidavit at page 108 of the
paperbook and time was sought to obtain instructions with
regard to examination of the file concerning the petitioner. The
authority was to revert back and report to this Court whether it
is intending to give an opportunity of hearing to the
petitioner/sugar factory.
25. A direction was issued to file an affidavit.
26. However, this Court was persuaded to pass an order
that till the next date of hearing of the petition, the respondents
should not take any coercive steps in pursuance of the orders
passed by the Collector, Solapur and the Under Secretary to the
State Government. Because that order was passed, it has
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continued till date. The matter was mentioned before us by
Ms Shilpa Kapil and our attention was invited to the fact that
these orders and directions of this Court are an impediment in
making the Airport functional. The respondent No.4/AAI
attempted to obtain a relief of vacating this interim stay but that
was on 2372018. We were surprised by this approach of the
AAI for it suddenly feels that this one Airport cannot be made
functional on account of pendency of the petition and the orders
therein.
27. It is in these circumstances, on 2372018, we passed
the following order:
“1. Let the petitioner's advocate on record circulate a
praecipe setting out the details of a pending Writ Petition
on the point particularly filed by the petitioner to
challenge the orders of the authorities under the Aircraft
Act, 1934. Secondly, we find that the petitioner's petitions
are being rendered infructuous or at least attempted to be
by the Airport Authority of India by relying on documents
or pleadings which are either not in proper format or if
already filed, copies have not been given to the other side.
We deprecate such state of affairs by any parties in this
Court.
2. In the event any party wishes to rely on current
policies or any further developments, it should, so as to
vacate the interim order take out an appropriate
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proceedings or at least file further affidavits enclosing
copies of these materials and serve them on the opponent
in advance. We would expect similar conduct and
assistance by the petitioners so that at one stretch all the
matters can be listed and disposed of.
rd
3. We post these matters on 3 August 2018 on
Supplementary Board.”
28. Thereafter, these writ petitions, namely, of the
petitioner/sugar factory and the Union were posted on 382018
and we were informed that an attempt would be made to
approach the AAI and find a solution. However, it does not seem
to be working out for there are clear instructions to the
Additional Solicitor General, who appears for the Union of India,
the Department of Civil Aviation and the AAI, to the contrary.
29. Our attention was also invited to the fact that on
2872017 the petitioners sought to rely upon an order of the
National Green Tribunal or its requirements to increase the
height above the ground level to 90 metres. Pertinently, on such
an application made as on 2872017, the AAI has not altered its
stand. It has been also urged by the petitioners that there is
construction of a Chimney by National Thermal Power
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Corporation Limited (“NTPC” for short) and of the same height.
That is also an industry. That construction is made pursuant to
the NOC of 1392012. However, the Chimney has been
constructed, according to the Additional Solicitor General, by
this Corporation at a far off place and that does not obstruct or
pose any threat to the safety of aircraft operations at the
concerned Airport. Hence no parity can be established insofar as
this Corporation is concerned.
30. Thus, it was only a facility or opportunity to the
petitioner to sit with the representatives of the statutory bodies
and work out a solution as was assured on the earlier occasion.
The instructions to the Senior Counsel are to urge that there is a
plantation and ready crop of sugarcane and which is now due to
be harvested. There is a crushing season of the sugar factory and
that is to commence in October, 2018. At least till that time the
construction of the Chimney should be allowed to remain or
stand at site. This sugar factory is of 1969. It caters Talukas such
as North Solapur, South Solapur, Akkalkot and Mohol in Solapur
District and Tulzapur Taluka in Osmanabad District and two
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Districts of Karnataka State which are also being catered to by
this sugar factory. Now what is projected before us is the
hardship and prejudice to about 26381 members of the
petitioner who are poor farmers. For the last 44 years, various
members and employees of the petitioner are cultivating and
harvesting sugar crops or rendering service to this sugar factory.
To enable it to manufacture sugar, there are about 1200 workers
whose future is at stake. Then there are dependent families of
these harvesters and cane transporters all of whom would be
affected prejudicially. Then it is stated that a 38 Mega Watt Co
Generation Power Plant has also been erected in the existing
sugar factory complex and to carry out the expansion of the
crushing capacity of the factory upto 7500 TCD and as a part of
it, a Boiler of 200 TPH (110 kg pressure) capacity was to be
installed and therefore in the year 2014 the construction of the
Chimney was necessary and that is how it has come up at the
site. We should, therefore, take a sympathetic view, is the
further instruction to this Counsel.
31. After hearing both Counsel at great length and
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perusing with their assistance the memo of these petitions so
also the annexures, the affidavits in reply and the additional
affidavits in reply, we find that the attempt by the petitioner is
not bona fide at all. There is already reference to a Civil Suit
filed by one Mahadev Baburav Chakote being Regular Civil Suit
No.406 of 2017 in the Court of Civil Judge, Senior Division,
Solapur. On 772017, an application seeking a restraint against
the authorities from demolishing this Chimney was rejected.
Secondly, we find that the petitioner knowing fully well that no
permission can be granted to put up a Chimney of more than the
prescribed height and as stipulated in the NOC, still went ahead
and has put up this Chimney/structure at site. That flies in the
face of the NOC. If the permissible height cannot be exceeded
even by the Ministry of Civil Aviation and the Government of
India, then, we do not see how any accommodation could have
been sought by the petitioner. It is thus apparent that what is
done by the petitioner at the site is erection and construction of
a structure contrary to law. It is unauthorized and beyond the
limits specified. Once everything that the petitioner attempted to
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do has been unsuccessful and the AAI reiterated the terms of its
conditional NOC dated 1752017, then, we do not see how the
petitioner can request us to make any order contrary to the
Rules, much less an order directing the AAI to accommodate the
petitioner further.
32. This is virtually an attempt to use the writ
jurisdiction of this Court to seek a relief which is in
contravention of law. Once the petitioner accepted the
conditional NOC, then, the writ jurisdiction is not meant to
enable it to wriggle out or escape the consequences of this NOC.
Neither the Rules nor the conditions imposed have ever been
challenged. The matters of safety of aircraft operations are
exclusively to be determined and decided by the authorities
under the Aircraft Act, 1934. The authority is the Department or
Ministry of Civil Aviation and the Directorate General of Civil
Aviation (Safety). Neither of them are in a mood to
accommodate the petitioner, as is evident from their affidavits
filed in this Court. This is a stand reiterated and repeatedly even
in the latest affidavit of 622018. It has been brought to our
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notice, in fact, by the last affidavit filed on 3172018 that the
petitioner is utilising the pendency of this petition to delay the
obvious. This affidavit also points out as to how respondent No.3
had considered the petitioner's request despite a direction to
remove the Chimney. The petitioner approached this authority
to suggest alternate sites for the Chimney. Today also this is
reiterated before us as if it is the job of the AAI to suggest to
everybody who builds an offending structure, a site, which
would be convenient for law breakers and such offenders. We do
not see why the authorities like the AAI or the Ministry of Civil
Aviation indulged the petitioner who is a patent wrongdoer.
The authorities incharge of Civil Aviation and particularly
aircraft operations (safety) ought to be concerned with only
these aspects and it is not their business to suggest alternate site
to parties like the petitioner. Yet, these authorities are
themselves to be blamed if the Airport is not made functional.
They cannot blame this Court for passing an order in November,
2017 and then making a capital of it, only to cover up their
inefficiency. We find that the petitioner/sugar factory seems to
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be very influential for 732018 was the date on which the AAI
informed the petitioner that it should check approximate site
locations by referring to the website. However, a careful perusal
of this letter of 732018 reveals that the entire burden was on
the petitioner to find the alternate location. This is but a
suggestion from the AAI. This does not mean that there is any
form of assurance, much less a representation so as to allow the
petitioner to continue with the use of its existing Chimney. Then
there was a meeting and the Minutes of that meeting, dated
1932018, also would clarify the matter as above.
33. On 642018, the Principal Secretary, Civil Aviation
Department was informed that the flight operations, in the first
round, could not start from Solapur due to presence of obstacles
surrounding the Airport. Even the District Magistrate, Solapur,
was informed about the possible alternate sites for the Chimney
by letter dated 662018. The existing NTPC Chimney is not
going to impact the RCS operation at Solapur. The petitioner, on
2562018, informed the Collector, Solapur, that to shift the said
Chimney at alternate sites, as suggested by the AAI, is practically
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impossible. The petitioner sought advice from their technical
expert at Chennai. We do not see how the petitioner could
request this Court for accommodation, for nothing suggested by
the AAI or the Ministry was acceptable to it and they fairly
communicated that it is not possible to shift the Chimney to such
sites as was suggested by the AAI. That is practically impossible.
Yet, the petitioner was informed by the Collector, Solapur on
472018 to expedite the process of obtaining advise. It is
strange that a wrongdoer is requested to expedite the process of
obtaining advise. In the garb of the order of this Court dated
10112017, restraining allegedly the authorities from taking
any coercive steps, all this was done is the explanation of the
learned Additional Solicitor General.
34. It may be true but we do not see how a person like
the petitioner can be accommodated and based on the orders of
this Court. It can go on dictating terms to the authority. We find
that on 3172018, the petitioner has been bold enough to
tender an affidavit and to say that the petitioner has learnt that
there is an acquisition of a site for new Greenfield Airport at
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Boramani, Solapur. The process of acquisition of about 550
Hectares of land is complete. This is, therefore, an assertion of a
petitioner who says that it will not shift its Chimney but now a
new Airport site is identified so let the Airport shift from the
existing site at Hotgi to Boramani. Even otherwise, until then
this Airport is not going to be made functional. Thus, the
regional connectivity scheme is sought to be defeated by the
petitioner and it seems to be more influential than the
respondents for it goes on then alleging discrimination. It also
says that the Solapur Airport is not operational regularly and it
is used only by the VIPs. We do not see how VIPs were allowed
to use it or permissions were given for the aircrafts carrying
them to land with the obstacle at site. This is a clear case of
compromise with air safety by accommodating a wrongdoer.
35. All this is going on in the garb of an interim order of
this Court. This only shows that until there are proven changed
circumstances, this Court should never modify its interim order.
The mandate of Order XXXIX, Rule 4 of Civil Procedure Code,
1908, as amended, requires changed circumstances not only to
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be brought to the notice of this Court but the satisfaction of this
Court that there are indeed changed circumstances and only
then its refusal to grant an injunction or interim relief should be
modified by it. Else, this is the result and then the parties claim
equities. The parties then seek to rely on extraneous and
irrelevant materials to perpetuate a wrong already done.
36. This last affidavit of the petitioner/sugar factory,
therefore, smacks of arrogance and displays its adamancy. This
petitioner does not, therefore, deserve any accommodation
from this Court.
37. This is a clear abuse of our writ jurisdiction and this
Court is sought to be persuaded to interfere in policy matters.
We are nobody to prescribe policies and particularly concerning
safe aircraft operations. We should never be seen as interfering
with policy matters or suggesting to the framers of the policy
any alternatives even if, in our opinion, they are better. We have
no business to frame policies or rewrite existing policies. Our
jurisdiction in such matters is extremely limited and in judicial
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review we cannot sit as an appellate body so as to consider
whether the existing policy is wise or foolish.
38. In the case of Maharashtra State Board of
Secondary and Higher Secondary Education and another v.
Paritosh Bhupesh Kurmarsheth , reported in AIR 1984 SC
1543, the Hon'ble Supreme Court has this to say with regard to
the powers of this Court in judicial review, particularly in policy
matters:
"14. …. In our opinion, this approach made by the High
Court was not correct or proper because the question
whether a particular piece of delegated legislation
whether a rule or regulation or other type of statutory
instrument is in excess of the power of subordinate
legislation conferred on the delegate has to be determined
with reference only to the specific provisions contained in
the relevant statute conferring the power to make the
rule, regulation, etc. and also the object and purpose of
the Act as can be gathered from the various provisions of
the enactment. It would be wholly wrong for the court to
substitute its own opinion for that of the legislature or its
delegate as to what principle or policy would best serve
the objects and purposes of the Act and to sit in judgment
over the wisdom and effectiveness or otherwise of the
policy laid down by the regulationmaking body and
declare a regulation to be ultra vires merely on the
ground that, in the view of the Court, the impugned
provisions will not help to serve the object and purpose of
the Act. So long as the body entrusted with the task of
framing the rules or regulations acts within the scope of
the authority conferred on it, in the sense that the rules or
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regulations made by it have a rational nexus with the
object and purpose of the Statute, the court should not
concern itself with the wisdom or efficaciousness of such
rules or regulations. It is exclusively within the province of
the legislature and its delegate to determine, as a matter
of policy, how the provisions of the Statute can best be
implemented and what measures, substantive as well as
procedural would have to be incorporated in the rules or
regulations for the efficacious achievement of the objects
and purposes of the Act. It is not for the Court to examine
the merits or demerits of such a policy because its scrutiny
has to be limited to the question as to whether the
impugned regulations fall within the scope of the
regulationmaking power conferred on the delegated by
the Statute. Though this legal position is well established
by a long series of decisions of this Court, we have
considered it necessary to reiterate it in view of the
manifestly erroneous approach made by the High Court to
the consideration of the question as to whether the
impugned clause (3) of Regn. 104 is ultra vires. ….
15. ….
16. In our opinion, the aforesaid approach made by the
High Court is wholly incorrect and fallacious. The Court
cannot sit in judgment over the wisdom of the policy
evolved by the legislature and the subordinate regulation
making body. It may be a wise policy which will fully
effectuate the purpose of the enactment or it may be
lacking in effectiveness and hence calling for revision and
improvement. But any drawbacks in the policy
incorporated in a rule or regulation will not render it
ultra vires and the Court cannot strike it down on the
ground that, in its opinion, it is not a wise or prudent
policy, but is even a foolish one, and that it will not really
serve to effectuate the purposes of the Act. The legislature
and its delegate are the sole repositories of the power to
decide what policy should be pursued in relation to
matters covered by the Act and there is no scope for
interference by the Court unless the particular provision
impugned before it can be said to suffer from any legal
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infirmity, in the sense of its being wholly beyond the scope
of the regulationmaking power or its being inconsistent
with any of the provisions of the parent enactment or in
violation of any of the limitations imposed by the
Constitution. None of these vitiating factors are shown to
exist in the present case and hence there was no scope at
all for the High Court to invalidate the provision
contained in cl. (3) of Regn. 104 as ultra vires on the
grounds of its being in excess of the regulationmaking
power conferred on the Board. Equally untenable, in our
opinion, is the next and last ground by the High Court for
striking down cl. (3) of Regn. 104 as unreasonable,
namely, that it is in the nature of a byelaw and is ultra
vires on the ground of its being an unreasonable
provision. It is clear from the scheme of the Act and more
particularly, Ss. 18, 19 and 34 that the legislature has
laid down in broad terms its policy to provide for the
establishment of a State Board and Divisional Boards to
regulate matters pertaining to secondary and higher
secondary education in the State and it has authorised
the State Government in the first instance and
subsequently the Board to enunciate the details for
carrying into effect the purposes of the Act by framing
regulations. …."
The petitioner/sugar factory has gone as far as instigating and
putting up its employees through their Union to file a
substantive petition (Writ Petition No.12131 of 2017) to
challenge the action of the AAI. We do not see how the Union
has any locus and over and above the petitionerestablishment
to question the AAI's action.
39. Once we find the litigation to be of the above nature,
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we dismiss it outright. The writ petitions are, therefore,
dismissed. The interim orders are vacated forthwith. It is only
because of the persuasion of the learned Senior Counsel that we
do not impose costs so as to discourage such litigation. We warn
all authorities and parties that we would be constrained to take
strict action in future in the event we find that their acts and
actions are apparently collusive and resulting in compromising
the safety of aircraft operations. The paramount consideration
for the AAI and DGCA ought to be the safety of the passengers
and the crew. If we are proclaiming to the world that there is
ease of doing business with India and Indian Government
policies are suited for meeting that end, then, this conduct is
surely not sending the correct signal and message to the world.
We say nothing more.
(SMT. BHARATI H. DANGRE, J.) (S.C. DHARMADHIKARI, J.)
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