HARIT VIPINCHANDRA DESAI Vs. AIRPORTS AUTHORITY OF INDIA

JUDGEMENT

(1.) Airports Authority of India (hereafter "AAI ", for short), respondent no. 1, has issued No-Objection Certificate (hereafter "the impugned NOC ", for short) in favour of the Mumbai Metropolitan Regional Development Authority (hereafter "MMRDA ", for short), respondent no. 2, to construct an over ground metro rail line within the Funnel Zone to the East of the approach and take off climb surface of runways 26 and 08, respectively, of Juhu Airport. According to the petitioner, the impugned NOC is ex-facie contrary to the Ministry of Civil Aviation (Height Restrictions for Safeguarding of Aircraft Operations) Rules, 2015 (hereafter "the 2015 Rules ", for short). The concern raised by the petitioner, in essence, is that the provisions relating to "height clearance " have been observed in the breach by the AAI and the decision to issue the impugned NOC is not lawful. It is claimed that if the metro rail line work is allowed to be commissioned by the MMRDA, the possibility of an aircraft arriving at or departing from Juhu Airport being involved in an accident, should such aircraft develop mechanical problems or there be inclement weather, cannot be ruled out. The petitioner has, thus, invoked the 'Public Interest Litigation ' jurisdiction of this Court by instituting this writ proceeding to have the impugned NOC quashed and such metro rail line work stopped.

(2.) The impugned NOC could have been subjected to an appeal under Rule 11 of the 2015 Rules. The Appellate Committee, in terms of Rule 11, ought to comprise of the Joint Secretary (Airports), Ministry of Civil Aviation, Government of India as the Chairperson with (i) the Joint Director of Civil Aviation (Aerodrome), Directorate General of Civil Aviation, (ii) Member (Air Navigation Services), AAI and (iii) one technical expert having knowledge in the field of communication / air traffic management, as Members of such committee. It is not in dispute that the incumbent Joint Secretary (Airports), Ministry of Civil Aviation, Government of India and the incumbent Member (Air Navigation Services), AAI, were part of the decision-making process leading to issuance of the impugned NOC in favour of the MMRDA. In such view of the matter, the remedy of an appeal provided by Rule 11 to the petitioner was rendered illusory and that is precisely the reason why instead of relegating the petitioner to the appellate remedy, this Court had considered it appropriate to hear the writ petition on its merits.

(3.) In course of hearing of the writ petition today, we have been taken through the 2015 Rules as well as the Schedule appended thereto by Mr. Nishant Thakkar, learned advocate for the petitioner. He contends that Rule 4 of the 2015 Rules has been breached in the present case. To demonstrate such breach, he has also invited our attention to the Schedules which are part of the 2015 Rules as well as the Joglekar Committee report of 1978, which is part of the writ petition, and on which the AAI has placed reliance in support of issuance of the impugned NOC. According to Mr. Thakkar, the Joglekar Committee considered runway no.26 and not runway no. 08 and that the AAI has proceeded on a misconception while issuing the impugned NOC.