CHALET HOTELS LIMITED Vs. HINDUSTAN AERONAUTICS LIMITED

JUDGEMENT

(1.) 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 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.

(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, 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 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.

(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 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.