Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: April 12, 2017
+ W.P.(C) 2258/2017
SKYLARK BUILDCON PVT. LTD. & ANR .....Petitioners
Versus
UNION OF INDIA & ANR .....Respondents
+ W.P.(C) 2272/2017
PILOT CONSTRUCTION PVT. LTD. ..... Petitioner
Versus
UNION OF INDIA & ANR .....Respondents
+ W.P.(C) 2274/2017
SHREENIWAS COTTON PVT. LTD. .....Petitioner
Versus
UNION OF INDIA & ANR .....Respondents
Present: Mr.Rajiv Nayar, Sr.Adv. with Mr.Kunal Vajani,
Mr.Pranaya Goyal, Mr.Nitesh Ranawat, Mr.Chiranjivi Sharma, Advs.
for the petitioners.
Ms.Anjana Gosain, Adv. with Mr.Rahul Singhal, Adv. for R1/UOI.
Mr.Digvijay Rai, Adv. with Mr.M.K.Das, Jt.G.M. for R2/AAI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
J U D G M E N T
W.P.(C) Nos.2258/2017 & connected matters Page 1 of 18
: MS. G. ROHINI, CHIEF JUSTICE
1. The petitioners in these petitions who proposed to construct buildings
in the vicinity of Mumbai Airport filed the petitions with the following
prayer:
"(a) Issue an appropriate Writ, order or direction under
Article 226 of the Constitution of India thereby declaring the
following as unconstitutional, void and inoperative:-
th
(i) Clause 5 of Schedule II of the Notification dated 30
September, 2015 issued by Respondent No.1 ("2015
Notification") as well as the Guidelines for Aeronautical
th
Study dated 11 July, 2014 ("2014 Guidelines"); and
(ii) Clause 10.4 of Air Traffic Management Circular No.9
th
of 2016 dated 7 June, 2016 ("ATMC Circular") as well
as the Guidelines on Allowable Penetration of OLS in
th
Aeronautical Study Reports dated 26 March, 2015 issued
by Respondent No.1 ("Guidelines on Allowable
Penetration of OLS");
(b) issue a Writ of Mandamus or a Writ in the nature of
Mandamus or any other appropriate Writ, order or direction
under Article 226 of the Constitution of India referring the
matter of the Petitioners to the ICAO for conducting an
aeronautical study in accordance with law to determine
whether additional height is permissible for construction of
the Free Sale Buildings being constructed by the Petitioners.
(c) Issue a Writ of Mandamus or a Writ in the nature of
Mandamus or any other appropriate Writ, order or direction
under Article 226 of the Constitution of India directing the
Respondents that upon receipt of the report of the
aeronautical study from ICAO, forthwith and in any event
within a period of 4 (four) weeks from the receipt of the
report, issue no objection to the Petitioners, for construction
of the Free Sale Buildings being constructed by the
Petitioners, of the height which is permissible as per the
report of the aeronautical study of ICAO."
W.P.(C) Nos.2258/2017 & connected matters Page 2 of 18
2. The Respondent No.1 before us is the Union of India, Ministry of
Civil Aviation (MoCA) whereas the Respondent No.2 is the Airports
Authority of India (AAI), a statutory body constituted under Section 3 of the
Airports Authority of India Act, 1994 (for short 'AAI Act').
3. It is pleaded that the petitioners in W.P.(C) No.2258/2017 and
W.P.(C) No.2272/2017 have proposed to construct the buildings in Mumbai
in implementation of Slum Rehabilitation Scheme (SRA Scheme)
sanctioned by the Slum Rehabilitation Authority appointed by the
Government of Maharashtra under Section 3-A of the Maharashtra Slum
Area (Improvement, Clearance and Redevelopment) Act, 1971.
4. The petitioners in W.P.(C) No.2258/2017 pleaded that to ensure the
viability of the project proposed by them under SRA Scheme they require
the height of 500.00 mtrs. Above Ground Level (AGL) and 501.909 mtrs.
Above Main Sea Level (AMSL) in order to consume the full Floor Space
Index (FSI). Since the constructions are proposed to be made within
20 kms. from the Mumbai Airport, it is necessary to seek height clearance
and therefore the petitioners applied for NOC. However, AAI granted NOC
for Tower-A upto 253.84 mtrs. AMSL and for Tower-B upto 264.31 mtrs.
AMSL as against the required height of 500.00 mtrs. AGL and 501.909
mtrs. AMSL.
5. So far as petitioner in W.P.(C) No.2272/2017 is concerned, it was
proposed to raise the buildings under SRA Scheme for which purpose it
required the clearance for the height of 217.00 mtrs. AGL and 221.172 mtrs.
AMSL. However, by proceedings dated 21.12.2010, AAI granted NOC for
height clearance upto 66.498 mtrs. AGL and 70.67 mtrs. AMSL only.
W.P.(C) Nos.2258/2017 & connected matters Page 3 of 18
6. The petitioner in W.P.(C) No.2274/2017 proposed to develop inter
alia residential, commercial and public parking consisting of several
buildings under the provisions of Regulation 58 of the Development Control
Regulations for Greater Mumbai, 1991. For the said purpose, the Petitioner
needs to develop five buildings with the heights ranging between 176.101
mtrs. and 436.211 mtrs. AGL (180.89 mtrs. and 441 mtrs. AMSL
respectively). However, AAI granted height clearance upto 176.101 mtrs.
AGL (180.89 mtrs. AMSL) only. It is pleaded in the said writ petition that
the land over which the buildings are proposed to be constructed is located
at a distance of 10.7 kms. away from the Santa Cruz Airport and Juhu
Airport and for several buildings in the said locality, permissions were
granted for higher heights than that was granted to the petitioner. It is also
the specific case of the petitioner that the proposed building is not in the
flight path, given the fact that it is located at a significant distance from the
Aerodrome Reference Point. The petitioner therefore made a request to
refer its case to ICAO for aeronautical study.
7. It is the case of the petitioners in W.P.(C) Nos.2258/2017 and
2272/2017 that for the purpose of implementation of SRA Scheme and to
ensure its viability, it is necessary to conduct an aeronautical study. It is
also pleaded that SRA Scheme is at an advanced stage and therefore they
requested the respondents to refer their cases for aeronautical study by
ICAO for conducting an aeronautical study to determine whether additional
height is permissible for the buildings proposed to be constructed by them.
W.P.(C) Nos.2258/2017 & connected matters Page 4 of 18
8. Aggrieved by the inaction on the part of the respondents in
considering their requests to refer the matter for aeronautical study by
ICAO, the present petitions have been filed.
9. In all the writ petitions it has been specifically pleaded that in
identical circumstances the respondents had referred/agreed to refer various
matters to ICAO for conducting aeronautical studies to determine the
permissible height of the buildings. Some of the instances mentioned in the
writ petitions are as under:-
(i) The Appellate Committee MoCA in its meeting dated
22.01.2015 directed that an aeronautical study be conducted by
ICAO with respect to granting permissible height of the
buildings to Gujarat International Financial Tech-City (Gift)
Project, ZFC Gift City, Gandhinagar,
(ii) AAI vide its order dated 28.08.2015 inter alia ordered that
aeronautical survey be conducted through ICAO in respect of
the following projects:-
a) Project at Bandra Kurla Complex where the proposal is
made by MMRDA for the development of the same, and
b) Project at Wadala Notified area.
10. It is also the specific case of the petitioners that the aeronautical study
as requested by them would only assist the respondents in reviewing the
cases of the petitioners for height clearance for the buildings proposed to be
constructed by them and no prejudice whatsoever would be caused to
anyone if such a study is permitted.
W.P.(C) Nos.2258/2017 & connected matters Page 5 of 18
11. It is also pleaded by the petitioners that in fact having appreciated the
need for conducting aeronautical study by ICAO to meet the need for
affordable housing in Mumbai, the Mumbai Metropolitan Region
Development Authority (MMRDA) vide letter dated 26.02.2016 addressed
to MoCA, recommended for conducting aeronautical study by ICAO to
ensure completion of the constructions proposed by the petitioners in
W.P.(C) Nos.2258/2017 and 2272/2017. The Chief Minister of Maharashtra
also addressed letter dated 14.03.2016 to MoCA stressing the need for
aeronautical study by ICAO to determine the maximum permissible height
for the said construction.
12. The contention of the petitioners is that as per the statutory rules
governing the height restrictions for safeguarding the aircraft operations, the
respondents are bound to consider the request of the applicants to refer the
matter to ICAO for conducting aeronautical study to determine whether the
height clearance as required by the applicants can be permitted. It is alleged
that the inaction on the part of the respondents in considering the requests of
the petitioners for referring their matters to ICAO for aeronautical study not
only amounts to dereliction of the statutory duty but also violative of
Articles 14 and 19(g) of the Constitution of India since the respondents had
earlier referred the matters of some of the similarly situated applicants to
ICAO for conducting the aeronautical study.
13. The petitioners, therefore, sought a declaration that the impugned
provisions under the statutory rules vide notification dated 30.09.2015 as
well as the Guidelines dated 11.07.2014 issued by MoCA and the Air
Traffic Management Circular dated 07.07.2016 issued by AAI are liable to
W.P.(C) Nos.2258/2017 & connected matters Page 6 of 18
be struck down contending that the unguided discretionary power vested
under the said provisions is arbitrary, illegal and violative of Article 14 of
the Constitution of India.
14. On behalf of the Union of India, a short affidavit dated 27.03.2017
has been filed stating that the respondent No.2/AAI has been authorized to
issue NOC on behalf of the Central Government in respect of civil
aerodromes. It is further stated that:
"The Secretary, Ministry of Civil Aviation had requested
the Chief Secretary, Government of Maharashtra to
communicate the willingness of the State Government to
undertake the ICAO survey for the entire Mumbai city
after the completion of the ongoing study of BKC and
Wadala areas vide letter D.O. No.AV-29013/420/2015-
AAI-MOCA dated 12th November, 2016. It was further
requested to indicate the coordinates of the specific areas
in Mumbai for which comprehensive aeronautical study
had to be conducted by ICAO because ICAO does not
undertake city-wide aeronautical surveys. It is submitted
that the response in regard to the letter is still awaited
from the State Government. It is submitted that the
aeronautical report from ICAO for BKC and Wadala
Notified areas is also awaited."
15. On behalf of the respondent No.2/AAI, a detailed counter affidavit
has been filed in which a preliminary objection has been raised as to the
maintainability of the writ petitions in this Court on the ground of lack of
territorial jurisdiction.
16. We do not find any substance in the said preliminary objection.
It may be true that some other petitions are pending before the High Court of
Bombay in which similar issues are stated to have been raised with regard to
height clearance. However, we make it clear that the consideration by us is
W.P.(C) Nos.2258/2017 & connected matters Page 7 of 18
limited only to the issue as to whether the inaction on the part of the
respondents in considering the request of the petitioners for referring their
matters to ICAO for aeronautical study is arbitrary, illegal and violative of
Article 14 of the Constitution of India. The said issue deserves
consideration by this Court since the situs of both the respondents 1 and 2 is
situated in Delhi within the territorial jurisdiction of this Court.
17. On merits of the case, it is contended by AAI that there was no
possibility of granting higher height in the case of the petitioners in
W.P.(C) No.2258/2017 through aeronautical study as the Communication
Navigation Surveillance (CNS) criteria was restricting height more than that
granted by way of NOC and therefore the aeronautical study as requested by
the petitioners was not done. In W.P.(C) No.2274/2017 and W.P.(C)
No.2272/2017, it is contended that the aeronautical study was already done
and, therefore, there is no occasion for conducting an aeronautical study by
ICAO as requested by the petitioners. The further contention is that the
Aeronautical Study Report of neither ICAO nor AAI is binding on Appellate
Committee and the Appellate Committee would take a decision on the report
after due deliberation. It is also contended that this Court has no
competence nor wherewithal to sit in judgment over the decision of the
respondents as to what should be the maximum height of the construction
near the airport.
18. We have given our thoughtful consideration to the rival submissions.
19. Section 9A of the Aircraft Act, 1934 empowers the Central
Government to issue directions by notification in the Official Gazette
prohibiting or regulating construction of buildings, planting of trees etc. for
W.P.(C) Nos.2258/2017 & connected matters Page 8 of 18
the safety of aircraft operations. In exercise of the powers so conferred,
MoCA issued Notification being S.O.No.84E dated 14.01.2010 directing
that no building or structure shall be constructed within the limits specified
in Annexures-1 and 2 from civil and defense aerodromes without obtaining
No Objection Certificates. It was also stated that AAI shall be responsible
for issuing NOC on behalf of the Central Government in respect of all civil
aerodromes. The procedure for grant of such NOC was also prescribed
therein.
20. It is relevant to note that under Section 5 of the Aircraft Act, 1934, the
Central Government is also empowered to make Rules for securing the
safety of aircraft operations. In exercise of the said rule making power read
with Section 9A of the Aircraft Act, 1934, MoCA in supersession of the
Notification dated 14.01.2010 made Rules vide Notification dated
30.09.2015 called the Ministry of Civil Aviation (Height Restrictions for
Safeguarding of Aircraft Operations) Rules, 2015. Rule 4 of the said Rules
which provides for height restrictions and Rule 5 which provides for
issuance of No Objection Certificate read as under:
"4. Restrictions on constructions, erections, trees, etc .––
(1) No structure shall be constructed or erected, or any tree
planted or grown on any land within a radius not exceeding
twenty kilometers from the Aerodrome Reference Point of the
civil and defence aerodromes, as specified in Schedule III to
Schedule VII, without obtaining a No Objection Certificate
for the height clearance, except in cases specified in subrule
(2) of rule 7.
(2) No structure shall be constructed or erected, or any tree
planted or grown on any land within the areas specified in
Schedule I of the civil and defence aerodromes, as listed in
W.P.(C) Nos.2258/2017 & connected matters Page 9 of 18
Schedule III to Schedule VII, except for essential navigational
aids and other installations required for aeronautical purposes.
(3) No structure higher than the height specified in Schedule
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 Schedule shall be planted on any land within a
radius of twenty kilometers from the Aerodrome Reference
Point.
(4) The level roads and level railway lines within one
kilometer of the airport boundary wall shall also be subject to
issuance of the No Objection Certificate.
5. Issuance of No Objection Certificate. –– (1) The No
Objection Certificate in respect of civil aerodromes shall be
issued by the designated officer on behalf of the Central
Government in respect of civil aerodromes.
(2) The No Objection Certificate in respect of defence
aerodromes shall be issued by the authorised officer in
accordance with Schedule I and Schedule II, subject to such
other conditions as the said authorised officer may deem fit.
(3) In case of State owned and private aerodromes, licensed
by the Directorate General of Civil Aviation, the No
Objection Certificate for the protection of obstacle limitation
surfaces (OLS) at such airports shall be issued by the
designated officer and the procedure in cases of State owned
and private aerodromes, not licensed by the Directorate
General of Civil Aviation, shall be regulated in the manner as
specified in rule 13.
(4) The application for issuance of No Objection Certificate
in respect of civil aerodromes, shall be made by the applicant
to the designated officer through the No Objection Certificate
Application System (NOCAS), accessible on the website of
the Airports Authority at www.aai.aero."
W.P.(C) Nos.2258/2017 & connected matters Page 10 of 18
21. Clause (5) of Schedule II to the Rules which provides for conduct of
aeronautical study may also be noticed hereunder:
"5. 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:
Note 1: 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 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.
W.P.(C) Nos.2258/2017 & connected matters Page 11 of 18
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.
5.2 Communication Navigation Surveillance (CNS)
Simulation study: In case any structure is required to be made
within aerodrome premises (airside and city side) by the
Aerodrome Operator which creates obstruction from CNS
point of view, a simulation study could be carried out to study
the impact of this structure on the performance of the relevant
facility and in case the study confirms that the impact would
not hamper the operability of the facility, such structure could
be permitted within the aerodrome premises."
22. A reading of the above Rules makes it clear that aeronautical study
shall be carried out by AAI, ICAO or any other agency approved for the
purpose of Ministry of Civil Aviation and based on the aeronautical study
report a revised height clearance, if necessary, can be communicated to the
applicant by AAI.
23. It may also be added that AAI issued Guidelines dated 11.07.2014 for
aeronautical study for the purpose of evaluating the existing or the proposed
structures, penetrating the obstacle limitation surfaces in terms of the
MoCA's Notification dated 14.01.2010.
24. After the statutory Rules were made by MoCA vide Notification dated
30.09.2015, the Respondent No.2/AAI issued Air Traffic Management
Circular (ATMC) No.9 of 2016 dated 07.06.2016 to standardize the process
of issuance of NOC for height clearance using online application system.
Clause 10 of the said Circular also provides for carrying out aeronautical
study on the direction of Appellate Committee which reads as under:-
W.P.(C) Nos.2258/2017 & connected matters Page 12 of 18
"10. Aeronautical Study
10.1 On the direction of Appellate Committee, AAI
shall carry out the Aeronautical Study as per the existing
Aeronautical Study Guidelines available on AAI website.
10.2. Applicant shall pay the Aeronautical Study fee of
Rs.20 lakh plus the applicable taxes to the Airports
Authority of India for conduct of Aeronautical Study.
Agreement for the same shall also be executed by the
applicant. Fees shall be paid online at AAI website
through the payment gateway in case online Appeal. For
Offline/manual appeal, fees shall be paid by DD in favor
of Airports Authority of India payable at New Delhi.
10.3 On completion of the aeronautical study, a report
shall be submitted to the Appellate Committee and based
on its directives, if necessary, a revised NOC letter may
be issued after the submission of undertaking by the
applicant in form IE (annexure-IE)
xxx xxx xxx "
25. It is pertinent to note that even under the Notification dated
14.01.2010 which stood superseded by the statutory Rules vide Notification
dated 30.09.2015, there was a provision for calculation of permissible
elevations based upon instrument approach procedures of ICAO.
26. It is brought to our notice that ICAO is a UN Specialized agency to
manage the administration and governance of the Convention on
International Civil Aviation (Chicago Convention) and it works with the 191
member States of the Convention and Industry Groups to reach consensus
on International Civil Aviation Standards and Recommended Practices and
Policies in support of a safe, efficient, secure, academically sustainable and
environmentally responsible civil aviation sector. As could be seen from the
W.P.(C) Nos.2258/2017 & connected matters Page 13 of 18
decision of the Supreme Court in Japan Airlines Company Ltd. Vs. CIT
(2015) 10 SCC 591, India is also a contracting State to ICAO.
27. On a perusal of the statutory Rules made by MoCA dated 30.09.2015
and Air Traffic Management Circular dated 07.06.2016 issued by AAI, it is
clear that the aeronautical study by ICAO has been recognized to be one of
the procedures for determination of permissible heights for the buildings
without interfering with the safety of aircraft operations.
28. The specific plea of the petitioners that the respondents had earlier
referred to ICAO for conducting aeronautical study to determine the
permissible heights of various other constructions has not been controverted
by the respondents.
29. The material placed on record included the proceedings of the
Appellate Committee, MoCA in its meeting dated 22.01.2015 wherein
aeronautical study was directed through ICAO to determine the permissible
height of the buildings proposed to be constructed by M/s Gujarat
International Financial Tech-City (GIFT) ZFC-Gift City, Gandhinagar.
30. In the meeting dated 28.08.2015 of AAI while taking a similar
decision for conducting aeronautical study through ICAO in respect of
Bandra Kurla Complex (BKC) and Wadala Notified Area (WNA) in
Mumbai, the need for such decision was incorporated in para-5 of the
minutes of AAI as under:-
"
5. The Commissioner, MCGM stressed that there is a
critical need for covering the affordable housing shortage
in Mumbai. Mumbai being an Island City, land is a
critical constraint taking into consideration the given
W.P.(C) Nos.2258/2017 & connected matters Page 14 of 18
circumstances, high-rise buildings in Mumbai would
need to be facilitated. Recognizing this, AAI should
commission a study to not only simplify and bring
reliability in the existing height structure process, but
also use cutting edge technology and other instruments
available in the World that would permit higher heights
in Mumbai City, both closer to the airport and also in the
funnel. A study should inter-alia include, relocation, new
technology upgradation and its seamless integration with
other elements like aircraft to facilitate higher heights in
the City."
31. In the above noticed facts and circumstances, we are of the view that
the respondents are not justified in ignoring the request of the petitioners for
referring their cases to ICAO for aeronautical study. It is relevant to note
that all the petitioners have expressed their willingness to bear the cost of
aeronautical study by ICAO for their projects.
32. Having regard to the fact that ICAO is specialized agency established
in pursuance of the Convention on International Civil Aviation and that
India is also a contracting State to ICAO and, more particularly, the
statutory Rules vide Notification dated 30.09.2015 as well as the Circular
dated 07.06.2016 issued by AAI have recognized such aeronautical study
through ICAO, it appears to us that by allowing such aeronautical study of
the cases of the petitioners by ICAO no prejudice whatsoever would be
caused to anyone. On the other hand, such study may assist the respondents
in reviewing the cases of the petitioners.
33. We make it clear that this Court is not expressing any opinion as to
the entitlement of the petitioners for grant of NOC for the height of the
constructions proposed by them since it is for the respondents to take the
W.P.(C) Nos.2258/2017 & connected matters Page 15 of 18
ultimate decision on the said issue. In these petitions, we are only concerned
with the grievance of the petitioners with regard to non-consideration of
their request for aeronautical study by ICAO.
34. It may be added that the petitioners in W.P.(C)No.2258/2017 and
W.P.(C) No.2272/2017 have taken up the projects under SRA Scheme in
respect of which it was observed by the Chief Minister of Maharashtra in its
letter dated 14.03.2016 as under:-
"A road has been proposed in the Development
Plan of Municipal Corporation of Greater Mumbai
(MCGM) along the Drainage Channel Road over. The
alighnment of the Sewri-Worli elevated corridor follows
the DP road in the area. Presently, there are slum
dwellers/hutments along the Drainage Channel Road at
Kamgar Nagar-I & Kamgar Nagar - II along this DP road
which will be rehabilitated in the nearby ongoing SRA
Scheme at Worli. Presently, there are no tenements
available with MMRDA to accommodate the PAPs of
Sewri Worli Connector project in the vicinity.
MMRDA will be able to take up the work of Sewri
Worli connector only after shifting and rehabilitation of
Project affected Persons (PAPs) falling in the project
alignment in the said area. It is understood that MCGM
has carried out the survey of the Project Affected Persons
(PAPs) and submitted the Annexure-II of to Slum
Rehabilitation Authority (SRA). The SRA has planned
the SRA Project in the area which is being implemented
by M/s Skuylark Buildcon Pvt. Ltd.
It is understood that this area needs to be surveyed
by International Civil Aviation Organization (ICAO) to
determine maximum permissible height so as to complete
the SRA Project. This will enable MMRDA to take up
the work construction of Sewri Worli connector as PAPs
W.P.(C) Nos.2258/2017 & connected matters Page 16 of 18
falling in this road would be rehabilitated completely. In
similar cases at Wadala and BKC the work of
Aeronautical Survey has been carried out earlier. The
charges towards Aeronautical Survey by ICAO may be
borne by the concerned Developer.
Considering this Sewri elevated being an
ambitious Government project the need of expeditious
resettlement and rehabilitation of PAPs for the
implementation of this corridor, has become a vital issue.
So it is requested that suitable instructions may be given
to carry out aeronautical study by ICAO about the
proposal of M/s Skylark Buildcon Pvt. Ltd.
immediately."
35. As is evident from the above letter of the Chief Minister, there is an
imminent need for rehabilitation of slum dwellers/hutments for which
purpose the SRA Scheme was taken up by the Government. Hence, the
petitioners are justified in requesting to refer their matters for aeronautical
study by ICAO since the same would enable the authorities to resolve
expeditiously the controversy with regard to the additional height clearance
sought by the petitioners.
36. With regard to the submission on behalf of the MoCA in its short
affidavit dated 27.03.2017 that it is proposed by MoCA to undertake the
ICAO survey for the entire Mumbai City and the said proposal is still under
process, we are of the view that the pendency of the said proposal cannot be
a bar to refer the matters of the petitioners for aeronautical study by ICAO.
37. Having regard to the admitted fact that such directions were already
issued by the respondents in respect of various other projects and keeping in
view that the projects undertaken by the petitioners are time bound and their
W.P.(C) Nos.2258/2017 & connected matters Page 17 of 18
requests for aeronautical study by ICAO have been pending for a
considerable time, and more particularly, aeronautical study by ICAO being
a recognized method under the statutory rules to determine that the proposed
construction would not adversely affect the safety of operations of the
aircrafts, we consider it appropriate to dispose of the writ petitions with the
following directions:-
(i) The respondents shall, within two weeks from today, refer the
matters of the petitioners herein to ICAO for conducting an
aeronautical study in accordance with law to determine whether
the additional height is permissible for the buildings being
constructed by them.
(ii) The cost/expenses and charges in relation to such study
including the equipment/instruments, if any, shall be borne by
the petitioners.
(iii) Upon receipt of the report of the aeronautical study from ICAO,
the appropriate decision with regard to permissibility of the
additional heights as sought by the petitioners for construction
of the Free Sale Buildings shall be taken by the respondents
within four weeks thereafter.
38. All writ petitions are accordingly disposed of.
CHIEF JUSTICE
APRIL 12, 2017/kks SANGITA DHINGRA SEHGAL, J
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