Delhi High Court

Shristi Infrastructure Development ... vs Airport Authority Of India & Ors on 15 October, 2024

Author: Sudhir Kumar Jain

Bench: Sudhir Kumar Jain

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 11th September, 2024
Decided on: 15th October, 2024

+ W.P.(C) 11422/2019, CM APPL. 46999/2019 & CM APPL.
46701/2019
SHRISHTI INFRASTRUCTURE DEVELOPMENT
CORPORATION LTD.
..... Petitioner
Through: Mr. Jayant Mehta, Senior
Advocate with Mr. Vijay K.
Singh, Mr. Kumar Shashwat
Singh and Mr. Ankur
Mishra, Advocates

AIRPORT AUTHORITY OF INDIA & OTHERS
..... Respondents
Through: Mr. Digvijay Rai, Advocate
with Mr. Archit Mishra and
Mr. Raghib Ali Khan,
Advocates for Airports
Authority of India/R-1
alongwith Mr. Kamal Kant
Soni, Officer of the Airports
Authority of India for R-1

CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN

JUDGMENT

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 1

1. The petitioner filed the present writ petition under Article 226 of

the Constitution of India for issuance of appropriate writ for quashing

the order vide reference no. CHQ File: AAI/20012/21/2011-ARI

(NOC); Case No. ER/241/2010; NOCAS ID:

KOLK/EAST/B/111912/017 dated 08.03.2019 (hereinafter referred

to as "the impugned order") whereby the respondent no.1/Airport

Authority of India (AAI) rejected the request of the petitioner for

Higher Top elevation of Tower-II.

2. The factual background of the case is that the petitioner has made

huge investment in a five star complex at Mouza Jatragachi, AA-

II/CBD/2, Action Area-II, New Town, Rajarhat (West Bengal),

District North 24, Parganas, State of West Bengal which is at a

distance of 7.06 kilometers from the Kolkata Airport. The complex

comprises of two Towers, i.e. Tower-I which includes commercial

and rental units and Tower- II, which is a building of serviced

apartments. Since the two Towers are close to the Kolkata Airport,

the petitioner has to obtain a no objection certificate (NOC) from the

respondent no.1/AAI under applicable law, i.e. the Aircraft Act, 1934

(hereinafter referred to as "the Act").

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2.1 The petitioner applied for the NOC and the respondent no.1/AAI

in pursuance of Letter no. Ry/SC7/16-A/724 dated 13.02.2006 issued

the First NOC for the construction of Tower-II on 26.07.2006 which

was valid for a period of three years i.e. till 26.07.2009. Under this

NOC, a height of the structure 2.75 M (site elevation) plus (+)

141.78M height i.e. 144.53 Meters AMSL (above mean sea level)

was approved for both Tower-I and Tower-II, under then applicable

1988 Notification. The construction of Tower-II could not be

completed within the NOC period i.e. till 26.07.2009 and as such

applied for a revalidation/renewal of the First NOC in 2010, to

complete the construction of Tower-II. The respondent no.1/AAI

informed the petitioner on 13.12.2010 that its case was being

considered for a height of 88.64 Meters AMSL for Tower-II, subject

to the receipt of a revised and duly authenticated section plan.

2.2 The petitioner being aggrieved by the sudden reduction in the

Tower height made representations with the respondent no.1/AAI

seeking a reconsideration of the height of Tower-I to the original

allotted height of 144.53 Meters AMSL and a height of 133.321

Meters AMSL for Tower-II as the petitioner had made investments in

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Tower-I and Tower-II on the basis of the approved plans under the

Original NOC dated 26.07.2006 and this sudden reduction in tower

height would severely jeopardize the commercial interests of the

petitioner and the financial investors.

2.3 The respondent no. 1/AAI on 13.06.2014 issued the Second NOC

under the now applicable 2010 Notification (superseding the earlier

1988 Notification and the interim 2008 Notification) which approved

the height for Tower-I upto 144.53 Meters AMSL and for Tower-II

for 90.30 Meters AMSL from the existing radar as on 13.06.2014

subject to increase upto 105.48 Meters AMSL after the

commissioning of the proposed Air Surveillance Radar (ASR) at the

Kolkata Airport. The petitioner being aggrieved by the Second NOC

dated 13.06.2014 which reduced the height of Tower-II to 90.30

Meters AMSL from the existing radar upto a maximum of 105.48

Meters AMSL subject to the commissioning of the proposed ASR

approached the respondent no.3 on 23.06.2014 protesting the

arbitrary reduction of the height of Tower-II and urging it to take into

account the fact that the petitioner's case pertained to

revalidation/renewal and not for an NOC to be issued de novo that

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 4

the construction had been undertaken only after the First NOC and

that both the Towers do not pose any restriction to the radar visibility

and are well within permissible height limits.

2.4 The respondent no.1/AAI on 03.07.2014 issued a Final NOC

based upon the approval of the respondent no. 3 which approved the

height of Tower-I upto 144.53 Meters AMSL and approved the

height of Tower-II upto 90.30 Meters AMSL from the existing radar.

The Final NOC also stated that an additional height of 15.18 Meters

AMSL for Tower-II may be permitted after commissioning of the

proposed ASR. The Final NOC was valid for a period of 5 years from

the date of issue i.e. till 03.07.2019. The petitioner appealed to the

respondent no.3 against the reduced height of Tower-II granted by

the respondent no.1/AAI in the Final NOC dated 03.07.2014. The

petitioner was given an opportunity of being heard on 24.06.2015 but

the respondent no.3 rejected the case of the petitioner by stating that

request of the petitioner that multi radar criteria should be applied,

cannot be considered since Kolkata Airport had a single radar. The

respondent no. 1/AAI wrote a letter dated 29.07.2015 to the petitioner

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 5

directing it to reduce the height of Tower-II to the approved height as

per the Final NOC dated 03.07.2014.

2.5 The petitioner being aggrieved by the Final NOC dated

03.07.2014, Order dated 24.06.2015 and the letter dated 29.07.2015

filed a Writ Petition bearing no. W.P.(C) 7652/2015 before this Court

on 11.08.2015. The Ministry of Civil Aviation (Height Restrictions

for Safeguarding Aircraft Operations) Rules, 2015 (hereinafter

referred to as "the 2015 Notification") were notified on 30.09.2015

during the pendency of the Writ Petition in supersession of the 2010

Notification. The "Note" under the 2015 Notification clarified that

large objects means those structures which either in isolation, or

collectively subtend the azimuth angle of 0.4 degree or above at the

radar antenna. The Note further specified that in a cluster of buildings

wherein the gap between the two adjacent buildings sub tends an

azimuth angle of less than 0.4 degree on the antenna pedestal, the

entire cluster is to be considered as one object.

2.6 The Writ petition bearing no. W.P.(C) 7652/2015 titled as

Shrishti Infrastructure Development Corporation Limited &

others V Union of India & others was dismissed vide order dated

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 6

25.04.2016. The petitioner filed a Letters Patent Appeal bearing LPA

no. 503/2016 on 24.05.2016 before this Court challenging the order

dated 25.04.2016 and prayed that the order dated 25.04.2016, the

Final NOC dated 03.07.2014, Order dated 24.06.2015 and the letter

dated 29.07.2015 be set aside. The petitioner during the pendency of

the LPA no 503/2016 wrote a letter bearing reference no.

Shristi/Hotel/AAI/17-18/785 dated 21.08.2017 to the respondent no.3

wherein it was stated that the petitioner's request for revalidation of

the Final NOC had been considered under the criteria for the 2010

Notification and that since the 2015 Notification had superseded the

2010 Notification, its case be reviewed applying the criteria under the

2015 Notification. It was also explained in the letter that under the

applicable criteria of the 2015 Notification, the petitioner's Tower-II

qualified under the height restriction imposed therein. The respondent

no.3 had agreed to re-examine the case of the petitioner according to

the criteria under the 2015 Notification and the petitioner was

informed vide an email dated 25.08.2017 in which top officials of the

respondent no.2 were also marked.

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 7

2.7 The respondent no. 1/AAI after receipt of one RTI application

dated 08.09.2017 from a third party to seek information about the

"Tilt angle" for all the ASR/ARSR/MSSR installed in airfields and

enroute, vide response dated 12.09.2017 confirmed that the tilt angle

of the MSSR at Kolkata was 2.5 degrees and said response was also

made available to the petitioner. The petitioner during the pendency

of the re-examination of its case hired Aero Survey Pvt. Ltd. and

obtained a site elevation and site coordinates certificate dated

16.01.2018. The petitioner wrote to the respondent no.1/AAI vide

letter dated 19.01.2018 and also appealed to the respondent no.3 vide

appeal dated 01.03.2018 for a review of its case under the 2015

Notification and requested for a height of 133.32 Meters AMSL for

Tower-II. The petitioner again vide its letter dated 22.06.2018

requested the respondent no.l/AAI to allow the height of 133.321

Meters AMSL for Tower-II by submitting the location map of the

buildings prescribing the coordinates of Tower-I and Tower-II along

with the survey document from Aero Survey Private Limited.

2.8 The respondent no.1/AAI vide email dated 10.10.2018 rejected

the request of the petitioner for proposed height of 133.32 meters

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 8

AMSL for Tower-II. The petitioner being aggrieved by the email

dated 10.10.2018 wrote to the respondent no. 2 and again requested

that its case be reconsidered and the calculation of the permissible

height based on the actual tilt angle of the radar at Kolkata be

calculated at 2.5 degrees and not 0.67 degrees as erroneously adopted

by the respondent no.1/AAI. The petitioner also wrote a second letter

dated 26.10.2018 to the respondent no.1/AAI informing about

petitioner's meeting with the Secretary of the respondent no. 2 on

24.10.2018 wherein the petitioner had explained its entire case to the

Secretary of the respondent no.2 and requested them to re-examine

case of the petitioner and that the respondent no.2 had assured the

petitioner that its case would definitely be re-examined.

2.9 The respondent no.1/AAI vide email dated 30.10.2018 informed

to the petitioner that in order to examine its appeal application, a

team of officials of the respondent no.1/AAI including a surveyor

from CHQ would be visiting the site of Tower-I and Tower-II for a

joint site verification. Accordingly, on 01.11.2018, a team led by Jt.

GM (CNS) of the respondent no.l/AAI visited the site of the

petitioner and surveyed the site and captured the site coordinates. A

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 9

joint verification of the coordinates noted during the site visit was

issued and signed by the representatives of both the petitioner and the

respondent no.l/AAI. The petitioner after the site visit conducted on

01.11.2018 availed the services of a third party independent expert

i.e. Sakthi Aviation for the purposes of carrying out a

Communication Navigation and Surveillance (CNS) Analysis of the

heights of Tower-I and Tower-II as per the criteria contained in the

2015 Notification. The Sakthi Aviation report dated 10.12.2018,

while determining that both the towers satisfied the criteria provided

under the 2015 Notification and did not interfere with the air traffic

control or CNS, therefore recommended a radar simulation of the site

to be carried out.

2.10 The respondent no.1/AAI did not provide a copy of its

analysis/report/findings about the data collected at the site visit on

01.11.2018 to the petitioner. Hence, the petitioner wrote a letter dated

23.01.2019 to the respondent no.3 requesting it to direct the

respondent no.1/AAI to submit the report prepared by them after the

site visit on 01.11.2018 and also requested to carry out radar

stimulation study by any independent agency to ascertain the

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 10

permissible height of the Tower-II. The report of the respondent no.1

was still not given to the petitioner. The respondent no.1 responded to

the petitioner's appeal and numerous representations vide email dated

08.03.2019 i.e. the impugned order by stating that Tower-II does not

qualify for higher height as along with Tower-I, it becomes a large

structure and accordingly restricted the height of Tower-II to the

earlier top elevation granted i.e. 105.48 meters AMSL.

2.11 The petitioner being aggrieved by the impugned order dated

08.03.2019 wrote a letter dated 22.04.2019 whereby requested the

respondent no.2 to allow it to conduct an independent study of its

case and re-examine the same through a radar simulation study to

demonstrate to the respondent no.1/AAI that its towers qualified the

applicable height restrictions under the applicable 2015 Notification.

The petitioner received no response to its abovementioned letter. The

respondent no.1/AAI responded vide email dated 18.07.2019 to

Mr.Ambrish Parekh's RTI Application seeking a list of

buildings/structures in and around the Kolkata airport which form an

obstruction with respect to the ASR/MSSR at Kolkata airport and

confirmed that there was no recorded information with respect to the

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 11

query raised. This information had been provided to the petitioner

from Mr. Ambrish Parekh. Mr. Ambrish Parekh on 07.08.2019 filed

another RTI application seeking information with respect to Tower-I

and Tower-II regarding inter alia the calculation method employed in

determining height restriction; noting sheets of decisions; the method

of calculating azimuth angle 0.4 degrees; and information about

radars.

2.12 The petitioner during the proceedings in the LPA no 985/2013

vide CM APPL. 22134/2019 prayed before this Court to direct the

respondent no.1/AAI to provide the petitioner with a copy of the

Report prepared pursuant to the site visit on 01.11.2018 and to further

allow it to conduct a radar simulation study. The application was

dismissed vide order dated 02.07.2019 but a copy of the Report

prepared by the respondent no.l/AAI post the site visit on 01.11.2018

was directed to be provided to the petitioner within a week and no

directions for a radar simulation study to be carried out by an

independent third party was given. The respondent no.l/AAI provided

a copy of the Report to the petitioner in compliance of the order of

this Court dated 02.07.2019.

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 12

2.13 The respondent no.1/AAI responded to the 2nd RTI application

of Mr. Parekh dated 07.08.2019 vide response dated 02.09.2019

wherein notings were made by various senior officials of the

respondent no.1/AAI based upon the coordinates and the information

collected during the site visit on 01.11.2018. The file noting by Mr.

Sanjeev Shah, Joint GM of the respondent no.1/AAI stated that the

methodology adopted to arrive at a conclusion that the two towers

formed a cluster subtending an angle of more than 0.4 degrees and

therefore forming a large object, was based on "crude method and

without any mathematical solution or computer simulated modelling

available at present". This noting was absent in the Report provided

to the petitioner in compliance of the order of this Court dated

02.07.2019.

2.14 The petitioner brought the aforementioned information and the

discrepancies in the Report to the knowledge of this Court during the

proceedings in the LPA no 985/2013 and submitted that in light of

new facts i.e. since the 2015 Notification is now applicable, the

existence of two radars and the admission of the respondent no.l/AAI

that a crude methodology was applied to assess its case, sought leave

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 13

of this Court to withdraw the LPA no 985/2013 with liberty to assail

the impugned order in a fresh action and leave was accordingly

granted vide order dated 24.09.2019. The petitioner has filed the

present petition with the prayer which is produced verbatim as

under:-

(a) Issue an appropriate writ, order or direction setting aside the Impugned Order dated March 08, 2019, passed by the Respondent No. 1/Airport Authority of India;

(b) Issue an appropriate writ, order or direction to the Respondents restraining them from any coercive action towards Tower-I and Tower-II, specifically the demolition of Tower-II to reduce the structure from its current height of 133.32 Meters. AMSL; and

(c) Pass any such other order(s) which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.

3. The respondent no. 1 filed counter-affidavit wherein stated that the

height granted to the petitioner for Tower-II (up to a height of 105.48

Meters AMSL) was affirmed by the impugned order dated

08.03.2019 after a joint survey and based on the latest Notification

dated 30.09.2015 being published vide G.S.R. 751 (E). The

impugned order is based on a scientific method adopted by the

respondent i.e. the NOCAS system which is computerized and in

conformity with the principles of natural justice and equity and

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cannot be said to be unreasonable and arbitrary. The respondent

agreed to re-examine the petitioner's case even after a decision by the

Appellate Committee and even in the process of re-evaluation, the

height granted to the petitioner vide NOC dated 03.07.2014 did not

qualify for a higher height. The expression "crude analysis" refers

only to the pictorial diagram drawn manually for explanation

purpose. The bare perusal of the Report dated 18.07.2019 reflects that

as far as large/small angle calculation or gap angle calculations are

concerned, these are accurate and without any ambiguity as they are

based on bearing information obtained automatically using a

scientific tool known as "No Objection Certificate Application

System" (NOCAS). The co-ordinates provided by the petitioner

were entered in the NOCAS System and thereafter based on the

readings on the NOCAS System, calculations were carried out as per

which Tower-I and Tower-II as a whole cluster subtends an angle

more than 0.4 degree on ASR/MSSR Kolkata and MSSR Kolkata.

3.1 The multi radar as per para 2.5.2 of G.S.R. 751 (E) refers to more

than one ASR (Airport Surveillance Radar). At present, Kolkata

Airport is being served with only one ASR collocated with MSSR.

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The other Radar at Kolkata is an MSSR being used as Air Route

Surveillance Rader (ARSR) which is defined under clause 2.6.1 and

2.6 of G.S.R. 751 (E) and hence, Kolkata Airport does not qualify as

Multi Radar criteria. The Delhi and Mumbai Airports only qualify as

multi radar Airports.

3.2 There is no building around Tower-II except for Tower-I which

forms a cluster together with Tower-II as per the Site Visit dated

01.11.2018 and the Report dated 18.07.2019. The large/small

structure and gap analysis between Tower-I and Tower-II is done in

accordance with the provisions of G.S.R. 751 (E) which shows that

Tower-I and Tower-II together form a cluster of more than 0.4 degree

and hence form a large structure. The Report of M/s Sakthi Aviation

is incorrect as the site co-ordinates for calculating gap angle has been

selected as per their own convenience whereas the correct method

has been elaborated in the Report dated 18.07.2019. Only the

designated officer as per Clause 5 is empowered to issue NOC on

behalf of the Central Government in respect of civil aerodrome.

3.3 The respondent no.1/AAI issued NOC dated 19/26.07.2006

granting approval to the petitioner to construct upto a height not

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exceeding 144.53 meters AMSL and the said NOC was valid for a

period of three years from the date of issue. The petitioner could not

complete the construction within the period of three years and

applied for renewal of the NOC. The respondent no.1/AAI vide its

communication dated 13.12.2010 informed the petitioner that the

case of the petitioner could be considered for NOC upto a maximum

height of 88.64 meters AMSL on receipt of required revised sanction

plan duly authenticated and asked the petitioner to submit a revised

undertaking and revised sanction plan for a restricted height of upto

88.64 meters AMSL. The petitioner appealed to the respondent

no.3/Appellate Committee and the respondent no.1/AAI vide its letter

dated 05.07.2012 informed the petitioner that the appeal of the

petitioner will be considered by the Grievance Redressal Committee

of the respondent no.2/Ministry of Civil Aviation and also asked the

petitioner to apply online for NOC. The respondent no.1/AAI vide

letter dated 13.06.2014 to the Regional Executive Director, Eastern

Region of AAI and with copy to the petitioner authorised the

Regional Executive Director, Eastern Region of AAI to issue revised

height clearance to the petitioner with respect to Tower-I of 144.53

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meters AMSL and with respect to Tower-II of 105.48 meters AMSL

on compliance of certain other conditions by the petitioner. The

petitioner again appealed to the respondent no.3/Appellate

Committee. The respondent no.1/AAI in the interregnum issued NOC

to the petitioner permitting the height of Tower-I upto 144.53 meters

AMSL i.e. for the same height for which NOC was earlier issued on

26.07.2006 but restricted the height for Tower-II upto 105.48 meters

AMSL as against the height of 144.53 meters AMSL for which NOC

was issued on 26.07.2006. The respondent no.3/Appellate Committee

after giving opportunity of being heard to the petitioner on

21.01.2015 and 24.06.2015 considered the appeal of the petitioner

and observed as under:-

i. The site of the petitioner lies in Outer Conical Surface and is at a distance of 6307 meters from Kolkata Airport runway;

ii. The petitioner had initially requested a height of 144.53 meters AMSL and against which they were granted an NOC dated 26th July, 2006 for a height of 144.53 meters AMSL with a three years validity;

iii. The petitioner on 27th August, 2010 i.e. after the expiry of the NOC asked for revalidation;

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iv. The provision of revalidation of NOC as per the Rules is applicable in those cases which were received for revalidation within the validity period;

v. The case of the petitioner was re-examined and NOC for the permissible height of 88.64 meters AMSL was issued;

vi. The change in height from the earlier NOC dated26th July, 2006 was due to the revised norms which were notified in January, 2010;

vii. The matter was examined on representations / appeal of the petitioner with respect to CNS (Communication Navigation and Surveillance) criteria and it was observed that individually "both the objects (i.e. towers) are small but collectively become large object and should not be considered for higher height than permissible from ASR (Air Surveillance Radar);

viii. The respondent no.3/ Appellate Committee in meeting held on 7th March, 2014 decided that re-examination of the case from CNS criteria for Tower-2 for the requested height of 133.321 meters AMSL taking into consideration the new radar at Kolkata Airport be carried out by the respondent No.1/ AAI and issue permission for the admissible height from new radar for Tower-2 and 144.53 meters AMSL for Tower-1;

ix. The authorisation after re-examination was given vide letter dated 13.06. 2014 for the permissible height of Tower

-1 of 144.53 meters AMSL and of Tower-2 for 90.30meters AMSL from existing radar and 105.48 meters AMSL after proposed ASR is commissioned;

x.The petitioner continued to represent and cited relaxations due to second radar granted to number of structures in Mumbai;

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xi. The petitioner during the hearing on 21.01 2015 had revealed that they had constructed Tower-2 beyond the permissible height of 105.48 meters AMSL after expiry of their NOC and thereafter an enquiry was ordered into, how such construction was permitted after the expiry of the validity of the earlier NOC;

xii. The request of the petitioner for application of multi radar criteria was considered but not found tenable as Kolkata has only one single ASR and that the benefits accruing from the present positioning of the existing radar had been applied in the CNS examination;

xiii. Accordingly, directions were issued for demolition of the excess height of Tower-2 as per the Aircraft Rules.

3.4 The writ petition bearing W.P.(C) no. 7652/2015 filed by the

petitioner was dismissed by this Court vide judgment dated

25.04.2016 and it was held that the petitioner had no reason to go

ahead with the construction beyond the height of 88.64 meters AMSL

which was communicated to them by the respondent no.1/AAI vide

communication dated 13.12.2010 and that the order of the respondent

no.3/Appellate Committee dated 24.06.2015 is unambiguous, lucid

and well-considered and does not show any need for any third party

opinion. The petitioner challenged the judgment dated 25.04.2016 by

way of LPA no. 503/2016 which was withdrawn on the ground that

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certain fresh facts have emerged that are required to assail the

impugned order dated 08.03.2019.

3.5 Section 9A of the Act empowers the Central Government to

direct that no building or structure shall be constructed or erected on

any land within such radius, not exceeding 20 Kilometers from the

Aerodrome Reference Point, as may be specified in the Notification

and/or to direct that no building or structure higher than such height

as may be specified in the notification shall be constructed or erected

on such land. The respondent is only concerned with the safety of

Aircraft Operations and not the commercial interests of the petitioner.

3.6 The petitioner was granted initial NOC in July, 2006 was as per

notification bearing no. S.O.988 and NOC dated 03.07.2014 was

based on notification dated 14.01.2010 bearing no. S.O. 84 (E). The

impugned order dated 08.03.2019 was based on the latest notification

dated 30.09.2015 i.e. GSR 751 (E). The petitioner allowed the initial

NOC dated 26.07.2006 to lapse and the provision of revalidation of

NOC as per Rules was applicable in those cases only which were

received for revalidation within their validity period. The letter dated

13.06.2014 issued by the respondent no 1/AAI is not a NOC but an

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authorization letter issued by the Corporate Headquarter of the

respondent no1/AAI to direct the Regional Office at Kolkata to issue

the revised NOC as per the authorization letter.

3.7 The ASR calculations for height restrictions is not based on Tilt

Angle but is based on Minimum Sector Altitude (MSA) and Pedestal

height of Antenna, as per para 2.5.1.1 of GSR 751 (E). Hence, the

assumption of the petitioner to examine the height restrictions based

on Tilt Angle is totally incorrect. The petitioner during the pendency

of LPA no. 503/2016 formally requested for a review vide letter

dated 01.03.2018 with respect to GSR 751 (E), Section 2.5 and sub-

section 2.5.1. The petitioner was informed vide e-mail dated

07.06.2018 that the location map submitted by the petitioner did not

cover the entire building, the curved portions were not fully covered

within the location coordinates and therefore was requested to submit

fresh location map prescribing the co-ordinates of entire Tower-I and

Tower-II building. The petitioner replied vide letter dated

22.06.2018. The petitioner's case was re-examined as per its request

based on GSR 751 (E) and the petitioner was duly informed of the

outcome of the re-examination vide e-mail dated 10.10.2018 which

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stated that under the applicable criteria of the 2015 Notification, the

petitioner's Tower-II does not qualify for a higher height.

3.8 The Tilt Angle is not the criteria for height restriction from

Airport Surveillance Radar. The calculations for height restrictions in

case of ASR Kolkata is based on Minimum Sector Altitude (MSA)

and Pedestal height of Antenna as per para 2.5.1.1 of GSR 751 (E).

M/s Sakthi Aviation selected the site coordinates for calculating gap

angle as per its own convenience whereas the correct method has

been elaborated in the Report provided to the petitioner vide letter

dated 18.07.2019 and M/s Sakthi Aviation has tried to give various

reasons suiting the requirement of the petitioner whereas the case is

dealt as per the provision contained in GSR 751 (E). It is also

submitted that with regard to the quote given by M/s Sakthi Aviation

that the gap angle calculation is not possible from space and there is

no requirement to measure gap angle from space as angle calculation

can be easily done mathematically based on coordinates of Radar

along with co-ordinates of Tower-I and Tower-II and the "Bearing

Direction" can be calculated in degree with respect to each of site co-

ordinates when seen from Radar site. The co-ordinates were recorded

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in the presence of the representative of the petitioner on 01.11.2018

and once the site co-ordinates are entered in the NOCAS application

system, the "Bearing" information is automatically provided in the

NOCAS Height Sheet from which various angles can be found and

the result can be finalized.

3.9 The site elevation is the elevation of the highest point on the

proposed site/plot and the site elevation of 2.75 meters AMSL as

provided by the petitioner shall be the elevation of the highest point

on the plot whereas site, elevation of 1.492 meters AMSL cited in the

report is elevation of a random point on the plot/site. The report was

based on the file of Site Survey/file noting/calculations carried out

based on site survey by various sections/Departments and it was

compiled for submission as a formal report. The report provided is a

single report only with 04 numbers of enclosures. The report derived

data from the enclosures and thus few facts may appear to be

duplicate. The report is neither incomplete nor tampered with and

hence, there is no misconduct on the part of the respondent.

3.10 The "crude method" refers to the hand drawn pictorial

diagrams. The angle calculation is purely scientific and correct and

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 24

the result based on scientific procedures will always remain the same

irrespective of the person handling the case. The hand drawn pictorial

diagrams which are for explanatory purposes may differ and hence

are termed as crude.

3.11 The petitioner in compliance to the order passed by this Court in

Appeal was given a report explaining the procedure, containing the

method of calculations of small/ large object along with NOCAS

height sheets and pictorial representation. The petitioner has a

misconception that the Multi Radar criteria is applicable at Kolkata

Airport and that there is only one ASR (Airport Surveillance Radar)

which is co-located with MSSR at Kolkata Airport, hence multi radar

criteria as per GSR 751 (E) is not applicable. The other Radar is

MSSR which is an Air Route Surveillance Radar (ARSR) and cannot

be considered for Multi Radar criteria. Para 2.5 of GSR-751 (E)

applies to ASR (Airport Surveillance Radar) and para 2.6 applies for

ARSR.

3.12 The Officers dealing with the case of the petitioner are experts

in relevant areas and are bound by the Rules, Regulations and

provisions for height restrictions as are clearly mentioned in GSR

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 25

751 (E). The present case is also dealt with as per GSR 751 (E) using

scientific tools and mathematical calculations. The clause 2.5.2.2 of

GSR 751 (E) as quoted by M/s Sakthi Aviation is not applicable in

this case as Kolkata Airport has only one Airport Surveillance Radar

(ASR). The angle calculations are based on scientific methods and

hence the results arrived at are accurate. The petitioner vide e-mail

dated 08.03.2019 was communicated the decision of the respondent

after a joint survey and detailed consideration of the petitioner's case

along with documents relied upon and hence does not require any

detailed reasoning being technical in nature. The Kolkata Airport

does not qualify as a multi radar airport as it has only one

ASR/MSSR being used as ASR and one MSSR, being used as ARSR

and hence, the 2015 Notification has rightly been applied in the case

of the petitioner. It was prayed that the petition be dismissed.

4. The petitioner filed a rejoinder to the counter affidavit filed in

response to petition wherein reiterated the facts stated in the petition

and denied the averments made by the respondent no.1 in its counter

affidavit. It was prayed that the petitioner be granted relief as prayed

for.

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 26

5. Mr. Jayant Mehta, learned Senior Counsel advanced oral

arguments on behalf of the petitioner and written submissions are

also filed on behalf of the petitioner. Sh. Mehta narrated the factual

position that the petitioner is seeking to set aside and/or quash the

impugned order dated 08.03.2019 passed by the respondent no.1/AAI

whereby the respondent no.1/AAI had restricted the maximum

permissible height of Tower-II of the site complex of the petitioner to

105.58 meters as per No Objection Certificate dated 03.07.2014 from

the originally granted height of 144.53 Meters AMSL granted under

No-Objection Certificate dated 26.07.2006. Sh. Mehta further stated

that the petitioner had constructed a complex comprising of Tower-I

and Tower-II at Mouza Jatragachi, AA-II/CBD/2, Action Area-II,

New Town, Rajarhat (West Bengal), District North 24, Parganas,

State of West Bengal which is situated at a distance of 7.06

Kilometres from NSCB International Airport, Kolkata. The complex

comprises of two Towers, i.e. Tower-I which includes commercial

and rental units and Tower-II which is a building of serviced

apartments. The petitioner had sought permission for height clearance

from the respondent no.1/AAI vide application dated 13.02.2006

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 27

under Section 9A of the Act 1934 for the construction of Tower-I and

Tower-II of the site complex. The respondent no.1/AAI had on

26.07.2006 issued a NOC dated 26.07.2006 which was valid for a

period of three years and approved height of 144.53 Meters AMSL

for Tower-I and Tower-II of the site complex. The petitioner had

made investments on the basis of the approved plans under the

original NOC dated 26.07.2006. The petitioner had applied for

revalidation of First NOC on 27.08.2010 but the respondent

no.1/AAI vide letters dated 13.12.2010 and 03.07.2014 had approved

the height of the Tower-I up to 144.53 Meters AMSL and approved

the height of Tower-II up to 90.30 Meters AMSL from the existing

radar. The height of Tower-II was to be increased up to only 105.48

Meters AMSL after proposed ASR had been commissioned. The

petitioner has filed a Writ Petition bearing no. 7652/2015 to

challenge the order dated 24.06.2015, NOC dated 03.07.2014 and

Letter dated 29.07.2015 issued by the respondent no.1/AAI which

was dismissed vide order dated 25.04.2016 passed by the learned

Single Judge of this Court. The petitioner filed appeal vide LPA no.

503/2016 which was allowed to be dismissed as withdrawn vide the

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 28

order dated 24.09.2019 without expressing any view on the merits or

the pleas taken by the appellants i.e. the petitioner.

5.1 The respondent no.2/the Ministry of Civil Aviation during the

pendency of the Writ Petition on 30.09.2015 again notified new

General Statutory Rules (G.S.R.) No. 751 (E), 2015 on height

restrictions for safeguarding of aircraft operations under the

applicable provisions of the Act. The petitioner vide letter dated

21.08.2017 approached the respondent no.1/AAI to consider its case

for revalidation under the 2015 Notification which was issued in

supersession of the 2010 Notification. The respondent no.3 agreed to

re-examine the case of the petitioner as per the criteria under the

2015 Notification. The respondent no.3 vide letter dated 25.08.2017

informed the petitioner that the respondent no.3 had decided to re-

evaluate and re-examine the case of the petitioner as per the criteria

under the 2015 Notification. The respondent no.1 despite multiple

rounds of representations and requests made by the petitioner had

vide impugned Order dated 08.03.2019 restricted the maximum

permissible height of Tower-II of site complex of the petitioner to

105.58 meters as per No Objection Certificate dated 03.07.2014.

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 29

5.2 Sh. Mehta assailed validity of the impugned order dated

08.03.2019 by arguing that the respondent no.1/AAI has failed to

provide any reason while passing the impugned order dated

08.03.2019 which is discriminatory and arbitrary. The impugned

order dated 08.03.2019 issued by the respondent no.l/AAI did not

give any reason in its support. Sh. Mehta referred the impugned order

dated 08.03.2019 which simply stated that "On examination, it was

concluded that the Tower-II does not qualify for higher height, as

along with Tower-I it becomes a large structure". The respondent

no.1/AAI being a public authority was legally bound to record valid

and cogent reasons explaining the decision arrived at in the impugned

order dated 08.03.2019 and Sh. Mehta referred Kranti Associates

Pvt. Ltd & another V Masood Ahmed Khan & others, (2010) 9

SCC 496 and Punjab State Electricity Board & others V Jit

Singh, (2009) 13 SCC 118. He also argued that the exercise of

discretion in discharge of statutory duties must involve application of

mind and must consider all the matter that are required for

consideration and the decision by the statutory authority must be non-

arbitrary and due consideration be given to the reasonable or

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 30

legitimate expectation of the person affected by the decision and

Rameshwar Prasad and others V Union of India, AIR 2006 SC

980 and Food Corporation of India V Kamdhenu Cattle Feed

Industries, (1993) 1 SCC 71 were referred.

5.3 Sh. Mehta further argued that the examination of case of the

petitioner for height restriction vide the impugned order dated

08.03.2019 was based on "crude method" and without any

mathematical solution or computer simulated modelling. The

respondent no.1/AAI has concealed file noting which reflected use of

"crude method without any mathematical solution or computer

simulated modelling". He stated that Site Visit Report prepared by

the respondent no.1/AAI contained a file noting which reflects that

methodology adopted to arrive at a conclusion that the two towers

formed a cluster subtending an angle of more than 0.4 degrees and

therefore forming a large object was based on "crude method and

without any mathematical solution or computer simulated

modelling". The respondent no 1 made available complete Site Visit

Report including file noting to the petitioner in response to RTI

Application 02.09.2019. The specific noting from Mr. Sanjeev Shah,

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 31

Joint GM of the respondentno.1/AAI was missing in the Site Visit

Report shared by the respondent no.1/AAI pursuant to order dated

02.07.2019 passed by this Court and the said file noting culminated

in the impugned order dated08.03.2019. The respondent no.1/AAI

being a statutory authority was bound to make a complete and fair

disclosure of facts and reliance was placed on Sarvjit Singh V

NDMC & others, ILR (2008) II Delhi 212. Sh. Mehta also countered

the argument advanced by Sh. Digvijay Rai, the learned counsel for

the respondent no.1/AAI that the expression "crude analysis" refers

only to the pictorial diagram drawn manually for explanation purpose

as the same is not drawn to scale. Sh. Mehta further argued that Site

Visit Report of the respondent no.1/AAI itself notes that the Tower-II

when assessed in isolation is classified as a 'small structure' and

admittedly is not "Large object" as defined in Clause 2.5.1.1 of the

2015 Notification as the angle formed by the Tower-II when seen

from the ASR/MSSR radar is 0.25 Degree and the angle formed by

the Tower-II when seen from MSSR (ARSR) is 0.19 degree which is

less than 0.4 Degree. Sh. Mehta after relying on file noting

empathetically argued that it is evident from the contents of the file

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 32

noting that the calculation of Gap Angle analysis i.e. determination of

whether two structures subtend an azimuth angle of less than 0.4

degrees was undertaken via "crude method without mathematical

solution or computer simulated modelling". Sh. Mehta further

highlighted that the respondent no.1/AAI has wrongly assessed the

permissible height without considering the tilt angle which has been

obtained by the petitioner in RTI reply dated 12.09.2017 and the

respondent no.1/AAI in counter affidavit stated that ASR calculations

for height restriction are not based on Tilt Angle. The calibrated tilt

angle of the Badu Radar as per the calculation sheet of the respondent

no. 1 was 3.00 degree because NOCAS was not updated as on date to

determine the gap angle. Sh. Mehta in light of these submissions

argued that the observations made by the respondent no.1/AAI in

impugned order dated 08.03.2019 that the two Towers form a cluster

was not undertaken in accordance with any scientific or mathematical

process rather the impugned order dated 08.03.2019 has admittedly

relied upon "crude method with any mathematical solution" to reject

the request of the petitioner for permissible height.

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 33

5.4 Sh. Mehta also argued that the respondent no.1/AAI has wrongly

stated that gap between Tower-I and Tower-II was calculated by

NOCAS application and during argument it was wrongly stated that

the calculation of the permissible height was carried out based on

NOCAS system. The respondent no.1/AAI in a tender dated

28.10.2020 admitted that the facility to calculate the angle between

two structures for examination of small/large/cluster forming purpose

is not available in NOCAS system and when applicant applies for

two or more structures within his plot then Gap Angle Analysis is

done manually. Sh. Mehta referred Report dated 10.12.2018 prepared

by Sakthi Aviation, a third-Party Independent expert in aviation

wherein highlighted that there was no measurement technique or

application available to measure the gap between towers from space

with respect to radar. Sakthi Aviation Report after considering

different combination of coordinates found that the gap between

Tower-I and Tower-II is more than 0.4 degree and building width

facing ASR/MSSR is 0.3595 and 0.2525 respectively and concluded

that Tower-I and Tower-II did not form a cluster as per Clause

2.5.2.2 sub clause IV of the 2015 Notification. Sh. Mehta ultimately

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 34

argued that observations made by the respondent no.1/AAI in the

impugned order dated 08.03.2019 that two towers form a cluster was

not undertaken in accordance with any scientific or mathematical

process rather the impugned order dated08.03.2019 has relied upon

"crude method without any mathematical solution" to reject request

of the petitioner for permissible height.

5.5 Sh. Mehta also argued that the case of the petitioner must be

assessed by criterion of multi-radar. Sh. Mehta after referring Site

Visit Report stated that it is evident from Report that there were more

than one radar at Kolkata airport at the time of assessing the height of

Tower-I and Tower-II on 01.11.2018. The second radar is installed at

Badu and Kolkata Airport is responsible to safeguard the radar

installed at Badu and second radar installed at Badu is "MSSR" radar

which can operate as ASR and/or ARSR based on operational usage.

Accordingly, the case of the petitioner be assessed on the basis of the

2015 Notification criteria with the confirmed presence of two radars.

The petitioner is entitled to the benefits of Multiple Radar Criterion

as provided for in Clause 2.5.2 of the 2015 Notification. Sh. Mehta

concluded by stating that the petitioner is committed to safety and

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 35

security of air-traffic arising to and from Kolkata Airport and the

petitioner is merely seeking relief against the arbitrary impugned

order dated 08.03.2019 passed by the respondent no. 1. The petitioner

is also ready to participate in the cost of the installation of any more

additional radar/equipment at Kolkata Airport which may be required

apart from the two radars existing. It is argued that the present

petition be allowed.

6. Sh. Digvijay Rai, the learned counsel for the respondentno.1/AAI

advanced oral arguments and written submissions were also

submitted on behalf of the respondent no.1/AAI. Sh. Rai stated that

this Court cannot sit as an appellate court against the decision taken

by an expert body due to lack of technical expertise and decision be

left for decision of those who are qualified to address the issues. The

petitioner is seeking to set aside the impugned order dated

08.03.2019 passed by the respondent no.1/AAI whereby the

petitioner was intimated Tower-II constructed by the petitioner does

not qualify for higher height as it with Tower-1 forms a large object.

The respondent no.1/AAI issued NOC dated 19/26.07.2006 to the

petitioner whereby granting no objection to construct a Tower upto a

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 36

height not exceeding 144.53 meters AMSL which was valid for three

years as per the prevalent rules. It was provided that if the

construction is not completed within the stipulated time then fresh

NOC would have to be taken by the petitioner. The petitioner

commenced construction after November, 2008 and was not

completed within three years. The petitioner on 27.08.2010 applied to

the respondent no.1/AAI for revalidation /renewal of the NOC but the

respondent no.1vide communication dated 13.12.2010 informed the

petitioner that the petitioner is only entitled upto maximum height of

88.64 meters AMSL for Tower-II on receipt Sanction Plan. The

petitioner preferred an appeal to the respondent no.3. The

respondentno.1/AAI during pendency of Appeal vide letter dated

05.07.2012 informed the petitioner that its Appeal would be

considered by the Grievance Redressal Committee of the respondent

no.2 and the petitioner asked to apply online for NOC. The

respondent no.1/AAI vide letter dated 13.06.2014 addressed to the

RED, Eastern Region authorised the said officer to issue revised

height clearance to the petitioner with respect to Tower-I for 144.53

meters and with respect to Tower-II for 105.48 meters AMSL on

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 37

compliance of certain conditions by the petitioner. The Petitioner

again appealed to respondent no.3 and the respondent no 1 in the

interregnum on 03.07.2014 issued NOC for Tower-1 upto 144.53

meters AMSL i.e. for the same height for which NOC was earlier

issued 26.07.2006 but the height of 105.48 meters was given in NOC

for Tower-II subject to operation of new radar. The respondent no 3

after hearing the petitioner observed in the meeting held on

24.06.2015 that the matter was examined with respect to CNS

(Communication Navigation and Surveillance) criteria and

individually "both the object (i.e. towers) are small but

collectively become large object and should not be considered for

higher height than permissible from ASR (Air Surveillance

Radar)". The petitioner had also revealed that the Tower-II has been

constructed beyond the permissible height of 105.48 meters for

which an enquiry was ordered. The request of the petitioner for

application of multi radar criteria was considered but was not found

tenable as Kolkata only has one single ASR Radar and accordingly

directions were issued for demolition of the excess height of the

Tower-II as per the Aircraft Rules.

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 38

6.1 Sh. Rai further stated that the petitioner filed a W.P.(C) no.

7652/2015 which was dismissed vide judgment dated 25.04.2016

passed by this Court by observing that there was no arbitrariness in

any action taken by the respondent no.1/AAI and the NOC

admittedly was not forever and it was further observed that a fresh

NOC would have to be obtained after expiry of validity. The Hon'ble

Court further held that the case of the petitioner was considered fairly

and permissible height was granted to the petitioner. The petitioner

filed LPA bearing no.503/2016 which was withdrawn on the ground

that additional information came in knowledge of the petitioner and

as such findings of the learned Single Judge vide judgment dated

25.04.2016 remain conclusive. The respondent no.1/AAI is only

concerned with the safety of Aircraft Operations and not the

commercial interests of the petitioner and the initial NOC granted to

the petitioner in July, 2006 was as per notification bearing no.

S.O.988 and the NOC dated 03.07.2014 was based on notification

dated 14.01.2010 bearing no. S.O.84 (E).

6.2 Sh. Rai further stated and argued that the petitioner has

challenged the impugned order dated 08.03.2019 on basis of

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 39

notification dated 30.09.2015 i.e. GSR 751 (E). It is further stated

that both S.O. 84(E) and GSR 751 (E) contained a stipulation

regarding "Large object" i.e. the structure/s in isolation or

collectively subtending azimuth angle of 0.4 degree or above at

Radar antenna. The entire cluster should be considered as one object

in case of cluster of buildings wherein the gap between the two

adjacent buildings subtends an azimuth angle of less than 0.4 degree

on the antenna pedestal and Tilt Angle is not the criteria for height

'restriction from Airport Surveillance Radar. Sh. Rai also stated that

in case of ASR Kolkata, calculation for height restrictions is based on

Minimum Sector Altitude (MSA) and Pedestal height of Antenna as

per para 2.5.1.1 of GSR 751 (E) and as such no benefit can be

granted to the petitioner and the height of 105.48 meters is final and

beyond which no construction is permissible.

6.3 Sh. Rai further referred Sakhti Aviation Report relied on by the

petitioner and argued that said Report is also incorrect as M/s. Sakhti

selected the site co-ordinates for calculating gap angle as per its own

convenience, whereas the correct method has been elaborated in the

Report provided to the petitioner vide letter dated 18.07.2019 and

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 40

M/s Sakhti failed to consider the case as per GSR 751 (E). M/s Sakhti

Aviation in report stated that gap angle calculation is not possible

from space but there is no need to measure gap angle from space as

angle calculation can be easily done mathematically based on

coordinates of Radar along with the co-ordinates of Tower-I and

Tower-II. It was further highlighted that once the site co-ordinates are

entered in the NOCAS application system, the "Bearing" information

is automatically provided in the NOCAS Height Sheet and report of

Sakhti Aviation is not binding on the respondent no.1/AAI as per the

existing rules.

6.4 Sh. Rai further argued that the petitioner strongly relies upon the

site visit report and the internal noting of the respondent no.1/AAI.

Sh. Rai stated that the petitioner had changed the site co-ordinate data

multiple times which made it necessary for the respondent no.1/AAI

to physically verify the site and obtain actual site co-ordinate of the

buildings i.e. Tower-I and Tower-II and accordingly a team of

officials of the AAI including a Surveyor visited the site in the

presence of the representative of the petitioner on 01.11.2018. There

is only one ASR (Airport Surveillance Radar) at Kolkata Airport and

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 41

as such multi radar criteria as per GSR 751 (E) is not applicable as

another radar is MSSR which is an Air Route Surveillance Radar

(ARSR) and cannot be considered for multi radar criteria. The Final

Report was prepared and was supplied to the petitioner. The Report

was based on the Site Survey/file noting/calculations carried out

based on site survey by the officials of respondent no.1/AAI. Sh. Rai

also countered the contention of the petitioner that the respondent

no.1/AAI has applied rudimentary or unscientific methods which was

crude and argued that the calculation method to arrive at structure

angle individually or the gap angle between the two buildings was

purely scientific and accurate. Sh. Rai categorically stated that the

crude method mentioned in the file noting refers only to the pictorial

depiction which was drawn just for explanation purpose that how the

angle calculation is arrived at and the pictorial representation is crude

as it is not drawn to the scale and the drawn angles and sizes of the

buildings will not be able to represent the actual ones and Tower-I

and Tower-II are indicated as spots in two dimensional

representations for easy understanding. The angle calculation is based

on "Bearing" information of the site coordinates when seen from the

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 42

Radar and the said information is calculated automatically by

NOCAS ARC, GIS software of ESRI which is elaborated in the

Report dated 18.07.2019.

6.5 Sh. Rai also countered the reliance of the petitioner on the noting

of the officer of the respondent no.1/AAI wherein said officer has

referred the methodology to be crude and stated that said officer in

conclusion of note mentioned that "Cluster of both towers

subtends angle of more than 0.4 degrees and hence become Large

Structure." The noting in the official files is essentially an internal

matter of the Government and does not have any legal sanctity unless

approved by the Competent Authority and communicated to the

concerned person and reliance was placed on Pimpri Chinchwad

New Township Development Authority V Vishnudev Coop.

Housing Society, (2018) 8 SCC 215. Sh. Rai argued that the present

petition be dismissed.

7. The petitioner in present petition has sought for quashing of

impugned order dated 08.03.2019 passed by the respondent

no.1/AAI. It is reflecting that the respondentno.1/AAI had restricted

the maximum permissible height of Tower-II to 105.58 meters

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 43

ASML in terms of No Objection Certificate dated 03.07.2014 in

contrast to height of 144.53 Meters AMSL which was granted in

terms of No-Objection Certificate dated 26.07.2006 which was valid

for a period of three years. The site of the petitioner pertaining to

Tower-II is situated at a distance of 7.06 Kilometres from NSCB

International Airport, Kolkata. The petitioner could not conclude

construction within stipulated time and applied for revalidation of

First NOC on 27.08.2010 but the respondent no 1 vide letters dated

13.12.2010 and 03.07.2014 had approved height of Tower-II up to

90.30 Meters AMSL from the existing radar. The respondent no 1 has

increased height of Tower-II up to 105.48 Meters AMSL after

proposed ASR had been commissioned. The petitioner filed a Writ

Petition bearing no. 7652/2015 to challenge the order dated

24.06.2015, NOC dated 03.07.2014 and Letter dated 29.07.2015

issued by respondent no 1 and said petition was dismissed vide order

dated 25.04.2016. The petitioner filed appeal vide LPA no. 503/2016

which was allowed to be dismissed as withdrawn vide the order dated

24.09.2019 but without expressing any view on the merits or the

pleas taken by the appellants i.e. the petitioner. The respondent no.2

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 44

on 30.09.2015 again notified new General Statutory Rules (G.S.R.)

No. 751 (E), 2015 on height restrictions for safeguarding of aircraft

operations. The petitioner again approached the respondent no.1 vide

letter dated 21.08.2017 to consider its case for revalidation under

2015 Notification. The respondent no.1/AAI vide impugned Order

dated 08.03.2019 restricted the maximum permissible height of

Tower-II to 105.58 meters ASML as per No Objection Certificate

dated 03.07.2014.

8. Sh. Jayant Mehta, the learned Senior Counsel for the petitioner

strongly and primarily argued that the case of the petitioner for height

restriction imposed vide the impugned order dated 08.03.2019 was

examined on basis of "crude method" and without resorting to any

mathematical solution or computer simulated modelling and file

noting in Site Inspection Report of the respondent no.1/AAI also

reflected use of "crude method without any mathematical solution or

computer simulated modelling" to arrive at a conclusion that the two

towers formed a cluster subtending an angle of more than 0.4 degrees

and as such forming a large object. Sh. Mehta after referring Site

Visit Report argued that Report itself notes that the Tower-II if

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 45

assessed in isolation is classified as a 'small structure' and is not

"Large object" as defined in Clause 2.5.1.1 of the 2015 Notification

as the angle formed by the Tower-II when seen from the ASR/MSSR

radar is 0.25 Degree and the angle formed by the Tower-II when seen

from MSSR (ARSR) is 0.19 degree which is less than 0.4 Degree.

Sh. Mehta further highlighted that the respondent no.1/AAI has

wrongly assessed the permissible height without considering the tilt

angle.

8.1 Sh. Rai, the learned counsel for the respondent no.1/AAI

countered arguments advanced by Sh. Mehta on behalf of the

petitioner and argued that S.O. 84(E) and GSR 751 (E) contained a

stipulation regarding "Large object" i.e. the structure/s in isolation or

collectively subtending azimuth angle of 0.4 degree or above at

Radar antenna and entire cluster should be considered as one object

in case of cluster of buildings wherein the gap between the two

adjacent buildings subtends an azimuth angle of less than 0.4 degree

on the antenna pedestal and Tilt Angle is not the criteria for height

restriction from Airport Surveillance Radar and the height of 105.48

meters ASML in respect of Tower-II is final. Sh. Rai further strongly

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 46

argued that once the site co-ordinates are entered in the NOCAS

application system, the "Bearing" information is automatically

provided in the NOCAS Height Sheet. The Kolkata Airport is not

considered for multi radar criteria. Sh. Rai strongly argued that the

calculation method used to arrive at structure angle individually or

the gap angle between the two buildings was purely scientific and

accurate and the crude method mentioned in the file noting refers

only to the pictorial depiction which was drawn just for explanation

purpose and not drawn to the scale. Sh. Rai also stated that office rof

the respondent no.1/AAI in conclusion of note mentioned that

"Cluster of both towers subtends angle of more than 0.4 degrees

and hence become Large Structure."

8.2 The perusal of Site Inspection Report reflects that a team duly

constituted by the competent authority visited site on 01.11.2018 to

verify and record coordinates of the structures. In respect of the

Tower-II, it was concluded that angle is less than 0.4 degree, hence

Tower-II is a small structure in isolation. The Tower-I and Tower-II

were treated as cluster as gap was found to be less than 0.4 degree on

gap analysis between Tower-I and Tower-II. The angle analysis for

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 47

Tower-II based on NOCAS sheet was also done. It was noticed that

since the angle was less than 0.4, Tower-II was a structure in

isolation. It was concluded at end on basis of calculation that the

Tower-II along with Tower-I forms a large structure when seen from

ASR/MSSR Kolkata and accordingly, higher height as claimed by

the petitioner was not granted and permissible top elevation remained

at 104.57 meters ASML for Tower-II. It is reflecting that angle

analysis in respect of Tower-I and Tower-II was done based on

NOCAS Sheet which is a scientific method. There is no force in

argument advanced by Sh. Jayant Mehta, the learned Senior Counsel

for the petitioner that height restriction vide impugned order dated

08.03.2019 was examined on basis of "crude method" and without

resorting to any mathematical solution or computer simulated

modelling. Even if file noting in Site Inspection Report contained

reflected use of "crude method without any mathematical solution or

computer simulated modelling", it does not provide much help to the

petitioner. More over this Court cannot sit as an appellate court over

the decision is taken by an expert body due to lack of technical

expertise as rightly argued by the counsel for the respondent no.1.

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 48

9. Sh. Mehta also referred Report dated 10.12.2018 prepared by

Sakhti Aviation wherein highlighted that there was no measurement

technique or application available to measure the gap between towers

from space with respect to radar and found that the gap between

Tower-I and Tower-II is more than 0.4 degree and concluded that

Tower-I and Tower-II did not form a cluster as per Clause 2.5.2.2 sub

clause IV of the 2015 Notification. Sh. Rai argued that Sakhti

Aviation Report is incorrect as M/s. Sakhti selected the site co-

ordinates for calculating gap angle as per its own convenience and

report of Sakhti Aviation is not binding on the respondent no.1/AAI

as per the existing rules. There is force in arguments advanced by Sh.

Rai as Report given by M/s Sakhti Aviation is without any legal

sanctity.

10. Sh. Mehta after referring Site Visit Report also stated that there

was more than one radar at Kolkata airport at the time of assessing

the height of Tower-I and Tower-II on 01.11.2018 and the case of the

petitioner must be assessed by criterion of multi-radar and due to this

reason, the case of the petitioner be assessed on the basis of the 2015

Notification. Sh. Rai stated that Kolkata only has one single ASR

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 49

Radar and as such multi radar criteria as per GSR 751 (E) is not

applicable as another radar is MSSR which is an Air Route

Surveillance Radar (ARSR) and cannot be considered for multi radar

criteria. There is no material on record to show that Kolkata Airport

is having more than one radar. The argument so advanced by Sh.

Mehta is misconceived and misplaced.

11. Sh. Mehta also attacked the impugned order dated 08.03.2019 by

arguing that the respondent no.1/AAI being a public authority was

bound to record valid and cogent reasons explaining the decision

arrived at vide impugned order dated 08.03.2019 but the respondent

no.1/AAI has failed to provide any reason while passing the

impugned order dated 08.03.2019. The impugned order dated

08.03.2019 reads as under:-

Sir, Please refer your Building project case located at Plot No.AAII/CBD/2 ,New Town, Kolkata, West Bengal.

On examination, it was concluded that the Tower-II does not qualify for higher height, as along with Tower-I, it becomes a large structure.

Therefore, Tower-II is restricted to the earlier Top Elevation granted by AAI.

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 50

11.1 The principles of natural justice involve a procedural

requirement of fairness and have become an essential part of any

system of administrative justice. Natural Justice is considered to be

part of rule of law. The Supreme Court in Sangram Singh V

Election Tribunal Kotah, AIR 1955 SC 425 observed that one

should not be condemned unheard and decision should not be

reached behind the back. The Supreme Court in Maneka Gandhi V

Union of India, AIR 1978 SC 597 emphasized that natural justice is

an essential element of procedure established by law and state action

must be right, just and fair and not arbitrary, fanciful and oppressive.

It was held that Article 14 of the Constitution strikes at arbitrariness

of state action and ensures fairness and equality of treatment.

11.2 The Supreme Court in Indian Oil Corporation Limited and

others V Shashi Prabha Shukla and another, (2018) 12 SCC 85

observed as under:-

33. (a) public authority in its dealings has to be fair, objective, non arbitrary, transparent and non discriminatory. The discretion vested in such an authority, which is a concomitant of its power is coupled with duty and can never be unregulated or unbridled. Any decision or action contrary to these functional precepts would be at the pain of invalidation thereof. The State and its instrumentalities, be it a public authority, either as an

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 51

individual or a collective has to essentially abide by this inalienable and non negotiable prescriptions and cannot act in breach of the trust reposed by the polity and on extraneous considerations. In exercise of uncontrolled discretion and power, it cannot resort to any act to fritter, squander and emasculate any public property, be it by way of State largesse or contracts, etc. Such outrages would clearly be unconstitutional and extinctive of the rule of law which forms the bedrock of the constitutional order.

11.3 The Supreme Court in Southern Power Distribution

Company Limited of Andhra Pradesh (APSPDCL) & another V

M/s Hinduja National Power Corporation Limited & Another,

2022 Livelaw (SC) 117 and also cited on behalf of the petitioner

observed as under:-

Every action of a State is required to be guided by the touchstone of non arbitrariness, reasonableness and rationality. Every action of a State is equally required to be guided by public interest. Every holder of a public office ·is a trustee, whose highest duty is to the people of the country. The Public Authority is therefore required to exercise the powers only for the public good.

11.4 The principles of natural justice are equally applied in purely

administrative functions. The Supreme Court in A.K. Kraipak V

Union of India, AIR 1970 SC 150 observed that the principles of

natural justice are applicable to administrative inquiries and

established that observance of principles of natural justice in decision

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 52

making process of the administrative body having civil

consequences.

11.5 The purpose of the principles of natural justice is to prevent

miscarriage of justice. The expression audi alteram partem implies

that a person must be given an opportunity to defend himself and

ensures that no one should be condemned unheard. The

administrative authority is also required to afford reasonable

opportunity to the party to present his case. A real, rationale and

effective hearing includes disclosure of all relevant material or

information which the authority wishes to use against the individual

in arriving of its decision. The administrative authority cannot take a

decision on the basis of any material unless the person against whom

it is sought to be utilized is given an opportunity to rebut or explain

the same.

11.6 The Supreme Court in Engineer and Manufacturing Co. V

Union of India, AIR 1976 SC 1785 reiterated the principle with an

emphasis that the rule requiring reasons to be given in support of an

order is a basic principle of natural justice, which must inform the

quasi-judicial process. It should be observed in its proper spirit and

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 53

"mere pretence of compliance with it would not satisfy the

requirement of law". It was observed in Maneka Gandhi V Union of

India, AIR 1990 SC 1984 that giving of reasons is a healthy check

against abuse or misuse of power. The requirement of duty to give

reasons was further crystallized in S.N. Mukherjee V Union of

India, AIR 1990 SC 1984 and reasons due to which a reasoned

decision must be passed were discussed. It was observed that

reasoned decision: (i) guarantee consideration by the authority; (ii)

introduce clarity in decisions; and (iii) minimize chances of

arbitrariness in decision-making thereby ensuring fairness in the

process. It was observed as under:

In our opinion, therefore, the requirement that reason must be recorded must be recorded should govern the decisions of govern the an administrative authority exercising quasi judicial functions irrespective of fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clean and explicit so as to indicate that the authority has given due consideration to the points in controversy.

11.7 The Supreme Court in Rani Lakshmi Bai Kshetriya Gramin

Bank V Jagdish Sharan Varshney & others, (2009) 4 SCC 496

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 54

held that the purpose of disclosure of reasons is that people should

have confidence in judicial and quasi-judicial authorities and

minimize chances of arbitrariness. It was held as under:-

The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N. Mukherjee vs. Union of India reported in (1990) 4 SCC 594, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.

11.8 The Supreme Court in the case of Namit Sharma V Union of

India, (2013) (1) SCC 745 regarding duty to give reasons held as

under:-

It is not only appropriate but is a solemn duty of every adjudicatory body, including the tribunals, to state the reasons in support of its decisions. Reasoning is the soul of a judgment and embodies one of the three pillars on which the very foundation of natural justice jurisprudence rests. It is informative to the claimant of the basis for rejection of his claim, as well as provides the grounds for challenging the order before the higher authority/constitutional court. The reasons, therefore, enable the authorities, before whom an order is challenged, to test the veracity and correctness of the impugned order. In the present times, since the fine line of distinction between the functioning of the administrative and quasi- judicial bodies is gradually becoming faint, even the administrative bodies are required

Signing Date:16.10.2024 W.P.(C).11422/2019 Page 55

to pass reasoned orders. In this regard, reference can be made to the judgments of this Court in the cases of Siemens Engineering & Manufacturing Co. of India Ltd. v. Union of India &Anr. [(1976) 2 SCC 981]; and Assistant Commissioner, Commercial Tax Department Works Contract and Leasing, Kota v. Shukla & Brothers [(2010) 4 SCC 785].

12. The perusal of impugned order dated 08.03.2019 passed by the

respondent no.1/AAI reflects that it was issued without properly

appreciating the material and without assigning any reason and is in

violation of the Principles of Natural Justice. The respondent

no.1/AAI being a statutory authority in discharge of its duties was

legally bound to record valid and cogent reasons explaining the

decision arrived at in the impugned order dated 08.03.2009 but it was

passed without giving reasons for its decision. The decision by the

statutory authority must be non-arbitrary and be supported by

sufficient reason. The impugned order dated 08.03.2019 is cryptic,

mechanical and is passed without application of mind. The impugned

order dated 08.03.2019 is passed without giving reasons and is