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Bombay High Court sets aside order by AAI's Appellate Committee restricting height of buildings within 2 km of Mumbai Airport [Read Order]

The April 2019 order of the Appellate Committee has been set aside by the High Court on grounds of lack of jurisdiction, given that it was based on 2018 draft Rules that were yet to be notified.

Shruti Mahajan

The Bombay High Court on Friday set aside the April 2019 order passed by the Appellate Committee of the Airport Authority of India (AAI) which had imposed a height restriction on buildings near the Mumbai Airport (Kalpataru Ltd. v. UOI and ors).

The Division Bench of Justices SJ Kathawalla and BP Colabawalla was hearing petiions filed by real estate developers who were to develop plots of land within the vicinity of the Mumbai airport and who were affected by the order of the Appellate Committee.

S.J. KATHAWALLA & B.P.COLABAWALLA
S.J. KATHAWALLA & B.P.COLABAWALLA

In April 2019, the Appellate Committee of the AAI had taken a decision to adopt a draft Rule in relation to height restrictions of buildings from the Civil Aviation Ministry's Draft Rules of 2018.

These rules have not been notified yet. However, the April 2019 order directed for the adoption of the rule which mandated for a building to be more than 2 kilometres away from the Airport Surveillance Radars (ASRs) that service the Chhatrapati Shivaji Maharaj International Airport at Mumbai to be able to take benefit of the maximum permissible height.

It was argued by the petitioners that this rule could not be applied without the Rules of 2018 being notified and when the Rules of 2015 were still in force. Moreover, the entire procedure for notifying the rules as prescribed under the Aircrafts Act of 1934 had not been completed as regards these draft rules of 2018, it was contended.

Therefore, the decisions taken in pursuance of the April 2019 order and the No Objection Certificates (NOC) issued as such would be in contravention of the law as well as arbitrary and illegal, it was argued on behalf of the petitioners.

The AAI, on the other hand, argued that the petitioners have an alternative remedy to assail the NOCs issued before the Appellate Committee and the Writ petition, therefore, would not be maintainable. It was also argued, that the decision taken by the Appellate committee was done keeping in mind higher safety standards.

The Court, however, allowed the petitions and set aside the April 2019 order on the grounds that the same was passed without jurisdiction.

The Court found merit in the submission that the elaborate process prescribed ought to have been followed before the draft Rules can be notified and applied, and that the order of the Committee fell short on this aspect.

"This decision of the Appellate Committee is not traceable to any provision or power of the Act or 2015 Rules. The power of any authority established under the Act or rules made thereunder, must be exercised strictly in accordance with the Act."
Bombay High Court

The Court added that while the authorities are free to take all steps necessary for the maintenance of high safety standards, the same cannot be done without the mandate of the law. All decisions must be taken within the statutory framework provided under the law, the Court added.

The Court also observed that the 2015 Rules were in place when the decision by the Appellate Committee was taken and that the same continues to remain in force even now.

Therefore, all applications before the Committee should have been treated in accordance with the Rules in force and not based on draft Rules which have not been notified yet.

"We are of the view that 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 Rule 11 of the 2015 Rules," the Court said.

Therefore, the decision of the Appellate Committee was set aside by the High Court for want of jurisdiction.

Read Judgment:

Kalpataru Ltd. vs UOI.pdf
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