[Cites 14, Cited by 0]
Gujarat High Court
Mahil Infra A Partnership Firm vs Airport Authority Of India on 30 April, 2026
NEUTRAL CITATION
C/SCA/3549/2024 JUDGMENT DATED: 30/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3549 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 11308 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 11656 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 11584 of 2024
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 11584 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 11675 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 4052 of 2024
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 4052 of 2024
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 4052 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
Yes
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MAHIL INFRA A PARTNERSHIP FIRM
Versus
AIRPORT AUTHORITY OF INDIA & ORS.
================================================================
Appearance:
MS MEGHA JANI SENIOR COUNSEL WITH MR JINESH H KAPADIA(5601)
for the Petitioner(s) No. 1 in SCA No.3549 of 2024
MR NIMIT Y SHUKA for the petitioner(s) No.1 in SCA No.4052 of 2024
MS KRUTI SHAH for MR RONITH JOY for the petitioner(s) No.1 in SCA
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No.11656, 11584 and 11675 of 2024
MR BHADRISH RAJU WITH MR DHANESH R PATEL(8226) for the
MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 3
MR DEEP D VYAS(3869) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 30/04/2026
COMMON JUDGMENT
1. All these petitions involve a common and identical issue,
and arise out of similar facts and circumstances; therefore,
they are being disposed of by this common judgment,
2. Rule returnable forthwith. Mr. Dhanesh Patel, learned
counsel waives service of notice of rule for and on behalf of
respondent No.1, Mr. Anuj K. Trivedi, learned counsel waives
service of notice of rule for and on behalf of respondent No.3
and Mr. Deep D. Vyas, learned counsel waives service of
notice of rule for and on behalf respondent No.4.
3. With the consent of the learned counsels appearing for both
the sides, the petitions are taken up for final hearing and final
disposal today.
4. The petitioners have preferred present petitions under
Articles 14, 19 (1)(g), 21, 226 and 227 of the Constitution of
India r/w the provision Aircraft 1934 r/w the provision of
Aircraft Demolition of Obstructions Caused by Buildings and
Trees etc. Rules, 1994 and under the provision of Ministry of
Civil Aviation (Hight Restrictions for Safeguarding of Aircraft
Operations) Rules 2015, seeking below mentioned relief/s.
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5. In Special Civil Application No.3549 of 2024 the petitioner
has prayed for below mentioned relief/s:-
"6. (a) To issue a writ of mandamus or a writ, order or
direction in the nature of writ of mandamus commanding the
Airport Authority of India to get an aeronautical study carried
out by International Civil Aviation Organization at the
expense of the petitioner, as prescribed in the Ministry of
Civil Aviation (Height Restrictions for Safeguarding of
Aircraft Operations) Rules, 2015, and thereafter take decision
on demolition of construction as may be found infringing the
safety standards for aircraft operations in accordance with
law;
(b) To issue a writ of mandamus or a writ, order or direction
in the nature of writ of mandamus commanding the Airport
Authority of India to accept and consider appeal of the
petitioner for revision of height clearance offline without
insisting on removal of construction of 4.88 meters which is
identified today as being over the permissible top elevation
prescribed in No Objection Certificate dated 2.12.2020.
Annexure-P1.
(c) To pass an ex parte ad interim order restraining the
Municipal Corporation or any other authority from removing
or insisting upon removing the construction made on Final
Plot No. 51 in Town Planning Scheme No. 75 (Muthiya -
Hanspura) situated at Village Hanspura, Taluka Asarva,
Ahmedabad pending the hearing and disposal of the present
petition; Annexure-P1.
(d) To pass any other order or orders in favour of the
petitioners as this Hon'ble Court deems fit and proper in the
facts and circumstances of the case."
5.1 In Special Civil Application No.11308 of 2024 the
petitioner has prayed for below mentioned relief/s:-
"6 (a) To issue a writ of mandamus or a writ, order or
direction in the nature of writ of mandamus commanding the
Airport Authority of India to get an aeronautical study carried
out by International Civil Aviation Organization at the
expense of the petitioner, as prescribed in the Ministry of
Civil Aviation (Height Restrictions for Safeguarding of
Aircraft Operations) Rules, 2015, and thereafter take decision
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on demolition of construction as may be found infringing the
safety standards for aircraft operations in accordance with
law;
(b) To pass an order quashing and setting aside quashing and
setting aside the impugned orders of rejection of No
Objection Certificates dated 26.08.2022 & 21.6.2023 passed
by the Respondent No.1 annexed to the Petition as Annexure
- D herein and declare the same to be illegal and bad in law
and thereby violative of Articles 14 & 21 of the Constitution
of India, 1950;
(c) To pass an ex parte ad interim order restraining the
Municipal Corporation or any other authority from removing
or insisting upon removing the construction made on land
bearing Final Plot no. 446 in Town Planning Scheme No. 39
(Naroda - 1) having sub plot no.2, block/building A plus B
plus C, survey no. 568/2 plus 569/P situated at mouje Naroda,
Taluka Asarva, Dahegam Road, Ahmedabad 382330, pending
the hearing and disposal of the present petition;
(d) To pass any other order or orders in favor of the petitioner
as this Hon'ble Court deems fit in the facts and
circumstances of the case"
5.2 In Special Civil Application No.4052 of 2024 the petitioner
has prayed for below mentioned relief/s:-
"9. (A) This Hon'ble Court may be pleased to admit and allow
the present Petition;
B. This Hon'ble Court may be pleased to issue a writ of
certiorari or a writ in the nature of certiorari or any other
writ, order or direction quashing and setting aside the
Impugned Order dated 15.01.2024 passed by the Respondent
No. 2 (ANNEXURE - P1 (COLLY)) and Impugned Decision
dated 15.12.2023 (communicated to the Petitioner on
30.01.2024) passed by the Respondent No. 1 (ANNEXURE-P1
(COLLY));
C. This Hon'ble Court, during the admission and pendency of
the present Petition, may be pleased to stay the operation
and implementation of the Impugned Order dated 15.01.2024
passed by the Respondent No. 2 (ANNEXURE - P1 (COLLY))
and Impugned Decision dated 15.12.2023 (communicated to
the Petitioner on 30.01.2024) passed by the Respondent No.
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1 (ANNEXURE - P1 (COLLY)) and an aeronautical study
Project Site 'Radhe Skyline - 2 of the Petitioner be conducted
by the Respondent Authority in presence of the Petitioner;
D. For ex-parte interim and ad-interim reliefs in terms of
prayer (C) above;
E. For such other and further reliefs which this Hon'ble Court
in the facts of the present case may deem fit."
5.3 In Special Civil Application No.11656 of 2024 the
petitioner has prayed for below mentioned relief/s:-
"6(a) To issue a writ of mandamus or a writ, order or
direction in the nature of writ of mandamus commanding the
Airport Authority of India to get an aeronautical study carried
out by International Civil Aviation Organization at the
expense of the petitioner, as prescribed in the Ministry of
Civil Aviation (Height Restrictions for Safeguarding of
Aircraft Operations) Rules, 2015, and thereafter take decision
on demolition of construction as may be found infringing the
safety standards for aircraft operations in accordance with
law;
(b) To pass an ex parte ad interim order restraining the
Municipal Corporation or any other authority from removing
or insisting upon removing the construction in the name and
style of 'M/s Satved Platinum' made on land bearing Final
Plot no. 446 in Town Planning Scheme No. 39 (Naroda - 1)
situated at mouje Naroda, Taluka Asarva, Dahegam Road,
Ahmedabad - 382330, pending the hearing and disposal of
the present petition;
(c) To pass any other order or orders in favor of the petitioner
as this Hon'ble Court deems fit and proper in the facts and
circumstances of the case."
5.4 In Special Civil Application No.11675 of 2024 the
petitioner has prayed for below mentioned relief/s:-
"6(a) To issue a writ of mandamus or a writ, order or
direction in the nature of writ of mandamus commanding the
Airport Authority of India to get an aeronautical study carried
out by International Civil Aviation Organization at the
expense of the petitioner, as prescribed in the Ministry of
Civil Aviation (Height Restrictions for Safeguarding of
Aircraft Operations) Rules, 2015, and thereafter take decision
on demolition of construction as may be found infringing the
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safety standards for aircraft operations in accordance with
law;
(b) To pass an ex parte ad interim order restraining the
Municipal Corporation or any other authority from removing
or insisting upon removing the construction on the land
bearing Final Plot No.424 in Tow Planning Scheme No.70,
Block No.28, Khata No. 258, Taluka Asarva Ahmedabad -
382330, pending the hearing and disposal of the present
petition;
(c) To pass any other order or orders in favor of the petitioner
as this Hon'ble Court deems fit and proper in the facts and
circumstances of the case."
5.5 In Special Civil Application No.11584 of 2024 the
petitioner has prayed for below mentioned relief/s:-
"6 (a) To issue a writ of mandamus or a writ, order or
direction in the nature of writ of mandamus commanding the
Airport Authority of India to get an aeronautical study carried
out by International Civil Aviation Organization at the
expense of the petitioner, as prescribed in the Ministry of
Civil Aviation (Height Restrictions for Safeguarding of
Aircraft Operations) Rules, 2015, and thereafter take decision
on demolition of construction as may be found infringing the
safety standards for aircraft operations in accordance with
law;
(b) To pass an order quashing and setting aside quashing and
setting aside the impugned orders dated 29.4.2024 passed in
appeal by the Respondent No.2 annexed to the Petition as
Annexure - D herein and declare the same to be illegal and
bad in law and thereby violative of Articles 14 & 21 of the
Constitution of India, 1950;
(c) To pass an ex parte ad interim order restraining the
Municipal Corporation or any other authority from removing
or insisting upon removing the construction made on land
bearing Final Plot no. 446 in Town Planning Scheme No. 39
(Naroda - 1) situated at mouje Naroda, Taluka Asarva,
Dahegam Road, Ahmedabad 382330, pending the hearing
and disposal of the present petition;
(d) To pass any other order or orders in favor of the petitioner
as this Hon'ble Court deems fit in the facts and
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circumstances of the case"
FACTS
Facts of Special Civil Application No. 3549 of 2024:-
6. The petitioner is a partnership firm engaged in real estate
development in the State of Gujarat. The partners purchased
land bearing Final Plot No. 51 in Town Planning Scheme No.
75 (Muthiya Hanspura), situated at Village Hanspura, Taluka
Asarva, Ahmedabad, through a registered sale deed in
October 2020. The petitioner proposed to develop the land by
constructing commercial and residential buildings under a
scheme named "Star Icon and Paradise," comprising four
towers--one tower having five floors and the other three
towers having approximately thirteen floors each.
6.1 Rule 4 of the Ministry of Civil Aviation (Height
Restrictions for Safeguarding of Aircraft Operations) Rules,
2015 provides that no structure shall be constructed or
erected within a radius of twenty kilometers from the
Aerodrome Reference Point of a civil or defence aerodrome
without obtaining a No Objection Certificate (NOC) for height
clearance. Since Village Hanspura is situated approximately
eight kilometers from Ahmedabad International Airport, the
petitioner was required to obtain such clearance. Accordingly,
the petitioner applied to the Airports Authority of India
through the online NOC Application System (NOCAS), and
permission was granted on 02.12.2020 for construction up to
a restricted height of 102.7 meters above mean sea level.
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6.2 Thereafter, the petitioner applied to the Ahmedabad
Municipal Corporation for development permission under the
provisions of the Gujarat Provincial Municipal Corporations
Act, 1949. The construction plan submitted by the petitioner
provided for four towers: Block A comprising cellar parking
and six floors with a height of 24.97 meters, and Blocks B, C,
and D comprising thirteen floors with a height of 43.65
meters. The proposed construction ensured that the top
elevation would remain within the limit permitted by the
Airports Authority of India. The Ahmedabad Municipal
Corporation granted development permission on 28.12.2020.
6.3 After obtaining all requisite statutory permissions and
clearances, the petitioner commenced construction at the site
in January 2021. The construction was carried out strictly in
conformity with the sanctioned plans, and periodic inspections
by municipal authorities did not reveal any irregularity. The
construction now stands completed, with Blocks B, C, and D
having a height of 43.65 meters, as permitted by the
Municipal Corporation.
6.4 Subsequently, the petitioner learned that Ahmedabad
International Airport Limited, by its letter dated 25.06.2022
addressed to the District Collector, Ahmedabad, reported that
certain buildings under construction had exceeded the height
permitted under the NOC issued by the Airports Authority of
India. The petitioner's project, "Star Icon and Paradise," was
included in the said list, stating that the measured top
elevation of the building was 107.58 meters as against the
permissible elevation of 102.7 meters, indicating an excess of
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4.88 meters. Acting upon this communication, the Ahmedabad
Municipal Corporation issued a notice dated 22.08.2022
directing the petitioner to stop further construction and
remove the alleged excess construction. As a result, the
Building Use Certificate has not been issued, thereby
preventing occupation of the premises by prospective
residents.
6.5 The petitioner clarified to the concerned authorities that
the height of the building from ground level is 43.65 meters,
strictly in accordance with the permission granted by the
Municipal Corporation, and that no excess construction has
been carried out. It was explained that, at the time of grant of
the NOC, the site elevation was recorded as 54.58 meters
above mean sea level, and on that basis, permission was
granted up to 102.7 meters. However, the ground elevation at
the site has subsequently been recorded at a higher level,
resulting in the top elevation exceeding the permissible limit,
despite the actual height of construction remaining
unchanged.
6.6 The petitioner submits that the alleged violation has
occurred not due to any unauthorized construction, but due to
variation in the recorded ground elevation data. The
petitioner, therefore, approached the authorities with a
request to conduct an aeronautical survey and expressed
willingness to bear the prescribed charges. Such a survey
determines whether the structure poses any hazard to aircraft
operations, on the basis of which a decision regarding height
clearance is taken.
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6.7 The petitioner was advised to file an appeal seeking
revision of the height clearance. However, as per Aerodrome
Safeguarding Circular (ADSAC) 08 of 2020, appeals can only
be filed through the online portal, which does not accept
applications where construction has already exceeded the
permissible top elevation. The system accepts appeals only
where construction has not commenced or where the alleged
excess portion has been removed. Consequently, the
petitioner has been unable to file the appeal online.
6.8 The petitioner thereafter submitted a representation dated
18.01.2024 to the Airports Authority of India, pointing out the
difficulty in filing the online appeal and requesting
consideration of its case for an aeronautical study without
insisting on removal of the alleged excess construction. The
petitioner further states that several similarly situated
projects in the vicinity faced comparable issues due to
variation in ground elevation. In those cases, since
construction had not exceeded the permissible top elevation
at the relevant stage, their appeals were accepted online, and
the Appellate Committee allowed such appeals by granting
revised height clearances, thereby increasing the permissible
top elevation for those projects.
Facts of Special Civil Application No. 4052 of 2024:-
7. The Petitioner is a partnership firm incorporated on
01.04.2019 and is engaged in the business of civil
construction and real estate development. The Petitioner has
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developed a scheme known as "Radhe Skyline - 2," comprising
four blocks (A, B, C, and D) on T.P.S. No. 241 (Nana Chiloda),
F.P. No. 199, Survey No. 277, Taluka Gandhinagar, strictly in
accordance with the permissions granted and the approved
plans, and has obtained registration under the applicable real
estate regulatory framework.
7.1 The Petitioner obtained a No Objection Certificate (NOC)
from the Airports Authority of India on 13.09.2019, permitting
a maximum top elevation of 102.7 meters above mean sea
level, which was based on a ground elevation of 60.43 meters
and accordingly allowed construction up to 42.20 meters in
height from ground level. Thereafter, the Petitioner received
development permission from the Ahmedabad Urban
Development Authority on 30.01.2020 for construction of a
residential-cum-commercial building consisting of twelve
floors in Blocks A, B, C, and D, with a permissible height of
42.20 meters.
7.2 The Petitioner carried out the construction in full
compliance with all applicable laws and permissions, as
evidenced by progress certificates issued on 25.01.2022 by
the Ahmedabad Municipal Corporation after physical
verification, confirming that the construction was in
accordance with the approved plans. However, the Petitioner
subsequently received a communication dated 07.09.2022
from the Ahmedabad Municipal Corporation enclosing a letter
dated 16.08.2022 issued by the Sardar Vallabhbhai Patel
International Airport Authority, directing stoppage of
construction work and requiring the Petitioner to obtain
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necessary height clearance before proceeding further.
7.3 The said communication also referred to a list of buildings
allegedly infringing the permissible top elevation, which
included two adjacent projects developed by Riddhi Siddhi
Buildcon (Ornet Heights) and Saanvi Infra (Maple Heights),
both of which were subsequently granted revised NOCs
permitting higher top elevations despite being similarly
situated and located in comparable proximity to the airport.
7.4 It is pertinent to note that prior to the issuance of the
aforesaid communication, the Petitioner had already
completed the entire construction of the scheme as on
02.09.2022 in full compliance with the sanctioned plans,
which is further corroborated by the Architect's Certificate
dated 05.09.2022.
7.5 Thereafter, as a matter of abundant caution, the Petitioner
applied on 05.04.2023 for a revised NOC under Rule 6A,
seeking enhancement of the permissible top elevation from
102.7 meters to 106.54 meters. The Respondent Authority, by
communication dated 07.06.2023, called upon the Petitioner
to furnish requisite plans and documents, which were duly
submitted by the Petitioner on 29.11.2023 along with a
renewed request for consideration of the revised NOC.
7.6 Despite the aforesaid, an impugned order dated
15.01.2024 came to be passed in an arbitrary and illegal
manner. Thereafter, by communication dated 30.01.2024, the
Petitioner was informed that in the Appellate Committee
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meeting held on 15.12.2023, the application seeking a revised
NOC had been rejected and directions were issued to initiate
action under the applicable rules.
7.7 Notably, in the very same meeting, the Appellate
Committee approved revised height permissions for another
similarly situated project, thereby demonstrating
discriminatory treatment. The Petitioner was neither granted
an opportunity of hearing nor informed prior to the decision,
and the order is ex facie cryptic and non-speaking.
7.8 The aforesaid actions have placed the Petitioner in a
highly prejudicial situation wherein, on the one hand, an
arbitrary decision has been taken without adherence to the
principles of natural justice, and on the other hand,
consequential directions have been issued requiring removal
of construction.
Facts of Special Civil Application No. 11308 of 2024
8. The Petitioner is a partnership firm engaged in the business
of real estate development in the State of Gujarat. The
partners of the firm own land bearing Final Plot No. 446 in
Town Planning Scheme No. 39 (Naroda-1), having Sub-Plot
No. 2, Blocks A, B, and C, Survey Nos. 568/2 and 569/P,
situated at Mouje Naroda, Taluka Asarva, Dahegam Road,
Ahmedabad. The Petitioner proposed to develop the said land
by constructing commercial and residential buildings and has
constructed six towers, each comprising fourteen floors,
under a scheme named "Dev Aashish Sky."
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8.1 Rule 4 of the Ministry of Civil Aviation (Height
Restrictions for Safeguarding of Aircraft Operations) Rules,
2015 provides that no structure shall be constructed or
erected within a radius of twenty kilometers from the
Aerodrome Reference Point of a civil or defence aerodrome
without obtaining a No Objection Certificate (NOC) for height
clearance. Accordingly, the Petitioner applied to the Airports
Authority of India through the online No Objection Certificate
Application System (NOCAS), and permission was granted on
08.02.2019 permitting construction up to a restricted height
of 102.7 meters above mean sea level.
8.2 Thereafter, the Petitioner applied to the Ahmedabad
Municipal Corporation for development permission under the
provisions of the Gujarat Provincial Municipal Corporations
Act, 1949. The construction plan provided for six towers,
Blocks A to F, each comprising fourteen floors. The proposed
construction ensured that the top elevation would remain
within the limit permitted by the Airports Authority of India,
and development permission was granted on 26.05.2023.
8.3 After obtaining all requisite statutory permissions and
clearances, the Petitioner commenced construction at the site,
and the entire construction was carried out strictly in
accordance with the sanctioned plans. The site was regularly
inspected by municipal authorities, and no illegality was
found. The construction now stands completed, with the
height of Blocks A to F being 44.66 meters (from plinth level),
in conformity with the permission granted by the Municipal
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Corporation.
8.4 Subsequently, the Petitioner learned that Ahmedabad
International Airport Limited, by a letter dated 19.04.2022
addressed to the District Collector, Ahmedabad, reported that
certain buildings had exceeded the height permitted under
the NOC issued by the Airports Authority of India. The
Petitioner's project "Dev Aashish Sky" was included in the
said list, stating that the measured top elevation of the
building was 106.68 meters as against the permissible
elevation of 102.7 meters, indicating an excess of 3.98 meters.
8.5 The Petitioner thereupon approached the concerned
authorities and clarified that the height of the buildings from
ground level is strictly as permitted by the Municipal
Corporation and that no excess construction has been carried
out. It was explained that, at the time of grant of the NOC, the
site elevation was recorded as 53.5 meters above mean sea
level, on the basis of which construction was permitted up to
102.7 meters. The Municipal Corporation had permitted
construction up to 44.66 meters, resulting in a total elevation
of 98.16 meters, which is within the permissible limit.
However, the ground elevation at the site has subsequently
been recorded at a higher level, approximately 58.2 meters,
thereby leading to the top elevation exceeding the permissible
limit, despite the actual constructed height remaining
unchanged.
8.6 The Petitioner submits that the alleged violation has
arisen not due to any unauthorized construction but on
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account of variation in the recorded ground elevation. The
Petitioner, therefore, requested the authorities to conduct an
aeronautical survey and expressed willingness to bear the
prescribed charges, as such a survey determines whether the
structure poses any hazard to aircraft operations.
8.7 The Petitioner was, however, advised to apply for a fresh
NOC. Such applications came to be rejected on 26.08.2022
and 21.06.2023, and no appeal has been preferred thus far.
8.8 It is further submitted that several other buildings in the
vicinity faced similar issues due to variation in ground
elevation, and in such cases the Appellate Committee allowed
applications by increasing the permissible top elevation--in
some instances up to 114.51 meters and in others up to
107.32 meters.
8.9 It is also pertinent to note that, in a similar factual
scenario, the Hon'ble Delhi High Court directed the conduct
of an aeronautical survey during the pendency of an appeal
and thereafter directed the Appellate Authority to consider
the matter in light of the survey report. This Hon'ble Court
has also taken cognizance of a similar issue in a separate
petition.
Facts of Special Civil Application No.11656 of 2024:-
9. The Petitioner is a partnership firm engaged in the business
of real estate development in the State of Gujarat. The
partners of the firm own land bearing Final Plot No. 446 in
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Town Planning Scheme No. 39 (Naroda-1), situated at Mouje
Naroda, Taluka Asarva, Dahegam Road, Ahmedabad. The
Petitioner proposed to develop the said land by constructing
commercial and residential buildings and has constructed two
towers, each comprising fourteen floors, under a scheme
named "Satved Platinum."
9.1 Rule 4 of the Ministry of Civil Aviation (Height
Restrictions for Safeguarding of Aircraft Operations) Rules,
2015 provides that no structure shall be constructed or
erected within a radius of twenty kilometers from the
Aerodrome Reference Point of a civil or defence aerodrome
without obtaining a No Objection Certificate (NOC) for height
clearance. Accordingly, the Petitioner applied to the Airports
Authority of India through the online No Objection Certificate
Application System (NOCAS), and permission was granted on
08.02.2019 permitting construction up to a restricted height
of 102.7 meters above mean sea level.
9.2 Thereafter, the Petitioner applied to the Ahmedabad
Municipal Corporation for development permission under the
provisions of the Gujarat Provincial Municipal Corporations
Act, 1949. The construction plan provided for two towers,
Blocks A and B, each comprising fourteen floors. The
proposed construction ensured that the top elevation would
remain within the limit permitted by the Airports Authority of
India, and development permission was granted on
16.12.2019.
9.3 After obtaining all requisite statutory permissions and
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clearances, the Petitioner commenced construction at the site,
and the entire construction was carried out strictly in
accordance with the sanctioned plans. The site was regularly
inspected by municipal authorities, and no illegality was
found. The construction now stands completed, with the
height of Blocks A and B being 44.1 meters (from plinth level),
in conformity with the permission granted by the Municipal
Corporation.
9.4 Thereafter, Ahmedabad International Airport Limited, by a
letter dated 22.09.2023, informed that during an aeronautical
survey inspection it was observed that certain buildings had
been constructed beyond the height permitted under the NOC
issued by the Airports Authority of India. The Petitioner's
project "Satved Platinum" was included in the said list, stating
that the measured top elevation of the building was 106.85
meters as against the permissible elevation of 102.7 meters,
indicating an excess of 4.15 meters.
9.5 The Petitioner approached the concerned authorities and
clarified that the height of the buildings from ground level is
strictly as permitted by the Municipal Corporation and that no
excess construction has been carried out. It was explained
that, at the time of grant of the NOC, the site elevation was
recorded as 53.5 meters above mean sea level, on the basis of
which construction was permitted up to 102.7 meters. The
Municipal Corporation had permitted construction up to 44.1
meters, resulting in a total elevation of 97.6 meters, which is
within the permissible limit. However, the ground elevation at
the site has subsequently been recorded at approximately
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57.19 meters, thereby leading to the top elevation exceeding
the permissible limit, despite the actual constructed height
remaining unchanged.
9.6 The Petitioner submits that the alleged violation has
arisen not due to any unauthorized construction but on
account of variation in the recorded ground elevation. The
Petitioner, therefore, requested the authorities to conduct an
aeronautical survey and expressed willingness to bear the
prescribed charges, as such a survey determines whether the
structure poses any hazard to aircraft operations.
9.7 The Petitioner was thereafter advised to file an appeal
seeking revision of the height clearance, and such an appeal
has been filed and is presently pending adjudication. The
Petitioner further states that several other buildings in the
vicinity faced similar issues due to variation in ground
elevation, and in such cases the Appellate Committee allowed
applications by increasing the permissible top elevation--in
some instances up to 114.51 meters and in others up to
107.32 meters.
9.8 It is also submitted that, in a similar factual scenario, the
Hon'ble Delhi High Court directed the conduct of an
aeronautical survey during the pendency of an appeal and
thereafter directed the Appellate Authority to consider the
appeal in light of the survey report. This Hon'ble Court has
also taken cognizance of a similar matter raising comparable
issues.
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Facts of Special Civil Application No.11675 of 2024
10. The Petitioner is a partnership firm engaged in the
business of real estate development in the State of Gujarat.
The partners of the firm own land bearing Final Plot No. 424
in Town Planning Scheme No. 70, Block No. 28, Khata No.
258, Taluka Asarva, Ahmedabad. The Petitioner proposed to
develop the said land by constructing commercial buildings
and has constructed one tower comprising six floors under a
scheme named "M/s Kalash Parisar."
10.1 Rule 4 of the Ministry of Civil Aviation (Height
Restrictions for Safeguarding of Aircraft Operations) Rules,
2015 provides that no structure shall be constructed or
erected within a radius of twenty kilometers from the
Aerodrome Reference Point of a civil or defence aerodrome
without obtaining a No Objection Certificate (NOC) for height
clearance. Accordingly, the Petitioner applied to the Airports
Authority of India through the online No Objection Certificate
Application System (NOCAS), and permission was granted on
29.04.2019 permitting construction up to a restricted height
above mean sea level.
10.2 Thereafter, the Petitioner applied to the Ahmedabad
Municipal Corporation for development permission under the
provisions of the Gujarat Provincial Municipal Corporations
Act, 1949. The construction plan provided for one tower,
Block A, comprising six floors. The proposed construction
ensured that the top elevation would remain within the limit
permitted by the Airports Authority of India, and development
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permission was granted on 11.06.2019.
10.3 After obtaining all requisite statutory permissions and
clearances, the Petitioner commenced construction at the site,
and the entire construction was carried out strictly in
accordance with the sanctioned plans. The site was regularly
inspected by municipal authorities, and no illegality was
found. The construction now stands completed, with the
height of Block A being 44.1 meters (from plinth level), in
conformity with the permission granted by the Municipal
Corporation.
10.4 Subsequently, the Petitioner learned that Ahmedabad
International Airport Limited, by a letter dated 19.04.2022
addressed to the District Collector, Ahmedabad, reported that
certain buildings had exceeded the height permitted under
the NOC issued by the Airports Authority of India. The
Petitioner's project "M/s Kalash Parisar" was included in the
said list, stating that the measured top elevation of the
building exceeded the permissible top elevation, thereby
indicating excess construction beyond the approved limit and
recommending legal action for reduction of the excess height.
10.5 The Petitioner approached the concerned authorities and
clarified that the height of the building from ground level is
strictly in accordance with the permission granted by the
Ahmedabad Municipal Corporation and that no excess
construction has been carried out. It was explained that, at
the time of grant of the NOC, the site elevation was recorded
at a particular level above mean sea level, on the basis of
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which permission was granted up to the prescribed top
elevation. The Municipal Corporation had permitted
construction up to 44.1 meters, resulting in a total elevation
within the permissible limit. However, the ground elevation at
the site has subsequently been recorded at a higher level,
thereby leading to the top elevation exceeding the permissible
limit, despite the actual constructed height remaining
unchanged.
10.6 The Petitioner submits that the alleged violation has
arisen not due to any unauthorized construction but on
account of variation in the recorded ground elevation data.
The Petitioner, therefore, approached the authorities with a
request to conduct an aeronautical survey and expressed
willingness to bear the prescribed charges, as such a survey
determines whether the structure poses any hazard to aircraft
operations and forms the basis for grant or refusal of height
clearance by the Airports Authority of India.
10.7 The Petitioner further states that several other buildings
in the vicinity faced similar issues due to variation in ground
elevation, and in such cases the Appellate Committee allowed
applications by increasing the permissible top elevation--in
some instances up to 114.51 meters and in others up to
107.32 meters. It is also submitted that, in a similar factual
scenario, the Hon'ble Delhi High Court directed the conduct
of an aeronautical survey during the pendency of an appeal
and thereafter directed the Appellate Authority to consider
the matter in light of the survey report. This Hon'ble Court
has also taken cognizance of a similar issue in a separate
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petition.
Facts of Special Civil Application No.11584 of 2024
11. The Petitioner is a partnership firm engaged in the
business of real estate development in the State of Gujarat.
The partners of the firm own land bearing Final Plot No. 446
in Town Planning Scheme No. 39 (Naroda-1), situated at
Mouje Naroda, Taluka Asarva, Dahegam Road, Ahmedabad.
The Petitioner proposed to develop the said land by
constructing commercial and residential buildings and has
constructed five towers, each comprising fourteen floors,
under a scheme named "Sahitya Hills and Icon."
11.1 Rule 4 of the Ministry of Civil Aviation (Height
Restrictions for Safeguarding of Aircraft Operations) Rules,
2015 provides that no structure shall be constructed or
erected within a radius of twenty kilometers from the
Aerodrome Reference Point of a civil or defence aerodrome
without obtaining a No Objection Certificate (NOC) for height
clearance. Accordingly, the Petitioner applied to the Airports
Authority of India through the online No Objection Certificate
Application System (NOCAS), and permission was granted on
08.02.2019 permitting construction up to a restricted height
of 102.7 meters above mean sea level.
11.2 Thereafter, the Petitioner applied to the Ahmedabad
Municipal Corporation for development permission under the
provisions of the Gujarat Provincial Municipal Corporations
Act, 1949. The construction plan provided for five towers,
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Blocks A to E, each comprising fourteen floors, and the
proposed construction ensured that the top elevation would
remain within the limit permitted by the Airports Authority of
India. Development permission was granted on 10.06.2019.
11.3 After obtaining all requisite statutory permissions and
clearances, the Petitioner commenced construction at the site,
and the entire construction was carried out strictly in
accordance with the sanctioned plans. The site was regularly
inspected by municipal authorities, and no illegality was
found. The construction now stands completed, with the
height of Blocks A to E being 49.14 meters (from plinth level),
in conformity with the permission granted by the Municipal
Corporation.
11.4 Subsequently, the Petitioner learned that Ahmedabad
International Airport Limited, by a letter dated 19.04.2022
addressed to the District Collector, Ahmedabad, reported that
certain buildings had exceeded the height permitted under
the NOC issued by the Airports Authority of India. The
Petitioner's project "Sahitya Hills and Icon" was included in
the said list, stating that the measured top elevation of the
building was 107.03 meters as against the permissible
elevation of 102.7 meters, indicating an excess of 4.33 meters,
and recommending legal action for reduction of the excess
height.
11.5 The Petitioner approached the concerned authorities and
clarified that the height of the buildings from ground level is
strictly in accordance with the permission granted by the
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Ahmedabad Municipal Corporation and that no excess
construction has been carried out. It was explained that, at
the time of grant of the NOC, the site elevation was recorded
as 53.5 meters above mean sea level, on the basis of which
construction was permitted up to 102.7 meters. The Municipal
Corporation permitted construction up to 49.14 meters,
resulting in a total elevation of 102.64 meters above mean sea
level, which was within the permissible limit. However, the
ground elevation at the site has subsequently been recorded
at approximately 57.19 meters, thereby leading to the top
elevation exceeding the permissible limit, despite the actual
constructed height remaining unchanged.
11.6 The Petitioner submits that the alleged violation has
arisen not due to any unauthorized construction but on
account of variation in the recorded ground elevation. The
Petitioner, therefore, requested the authorities to conduct an
aeronautical survey and expressed willingness to bear the
prescribed charges, as such a survey determines whether the
structure poses any hazard to aircraft operations. The
Petitioner was thereafter advised to file an appeal seeking
revision of the height clearance. Such appeal was filed but
came to be rejected by order dated 29.04.2024.
11.7 It is further submitted that several other buildings in the
vicinity faced similar issues due to variation in ground
elevation, and in such cases the Appellate Committee allowed
applications by increasing the permissible top elevation--in
some instances up to 114.51 meters and in others up to
107.32 meters.
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11.8 It is also submitted that, in a similar factual scenario, the
Hon'ble Delhi High Court directed the conduct of an
aeronautical survey during the pendency of an appeal and
thereafter directed the Appellate Authority to consider the
matter in light of the survey report. This Hon'ble Court has
also taken cognizance of a similar matter and issued notice in
a petition raising comparable issues.
11.9 In view of the aforesaid facts and circumstances, all the
petitioners have filed aforesaid petitions.
12. Heard Ms. Megha Jani, learned Senior Counsel for
Mr.Jinesh H. Kapadia, learned counsel for the petitioner in
Special Civil Application No.3549 of 2024, Mr. Nimit Shukla,
learned counsel for petitioner in Special Civil Application
No.4052 of 2024, Ms. Kruti Shah, learned counsel for Mr.
Ronith Joy, learned counsel for the petitioner in Special Civil
Application No.11308 of 2024, 11656 of 2024, 11675 of 2024
and 11584 of 2024 and Mr. Bhadrish Raju, learned counsel for
Mr. Dhanesh Patel, learned counsel for respondent No.1 and
Mr. Anuj K. Trivedi, learned counsel for respondent No.3 and
Mr. Deep D. Vyas, learned counsel for respondent No.4.
SUBMISSION OF THE PETITIONER
Special Civil Application No. 3549 of 2024
13. The learned Senior counsel for the petitioner submits
that the towers constructed by the petitioner are strictly in
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conformity with the building permission granted by the
Ahmedabad Municipal Corporation, which itself is based upon
the permissible top elevation specified by the Airports
Authority of India. It is submitted that present situation,
wherein the buildings are alleged to exceed the permissible
top elevation, has arisen not on account of any unauthorized
or additional construction carried out by the petitioner, but
solely due to variation in the recorded ground/surface
elevation, an aspect beyond the control of the petitioner and
not attributable to it in law. In such circumstances,
characterizing the petitioner's construction as being in breach
of the permissible top elevation is arbitrary, erroneous, and
unsustainable. It is submitted that the respondents have
further erred in not considering the petitioner's request for
conducting an aeronautical study, which is essential to
determine whether the structure in question poses any actual
hazard to air traffic movement or aircraft operations. It is
submitted that as per Clause 5 of Schedule II of the Ministry
of Civil Aviation (Height Restrictions for Safeguarding of
Aircraft Operations) Rules, 2015, an aeronautical study may
be conducted to assess whether an existing object adversely
affects the safety or operation of aircraft, with the primary
objective being to ensure safety of air navigation and efficient
utilization of airspace. It is submitted that if upon such study
it is conclusively established that the structure poses a
hazard, the petitioner undertakes to remove the excess
portion; however, the respondents cannot insist upon
demolition as a precondition without first determining,
through such study, whether the structure actually constitutes
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a safety risk. It is further submitted that directing demolition
of the existing structure at this stage would defeat the very
object of the 2015 Rules as well as the Guidelines for
Aeronautical Study issued by the Airports Authority of India,
as the need for such study arises precisely in cases where
there is a discrepancy between the permitted and constructed
height. It is submitted that in the present case, the
petitioner's appeal has not been considered and therefore
appropriate directions ought to be issued to the respondents
to decide the same and conduct an aeronautical study without
insisting upon prior demolition. It is submitted that the
respondents have acted arbitrarily in requiring demolition of
the alleged excess construction as a precondition for
considering the petitioner's application for revision of
permissible top elevation, particularly when several similarly
situated projects in the vicinity have been granted revised
height permissions. It is further submitted that there is no
statutory provision mandating demolition as a condition
precedent for consideration of an application for revision of
height clearance or for conducting an aeronautical study. It is
submitted that the petitioner reiterates that the construction
has been carried out strictly in accordance with permissions
granted by the Ahmedabad Municipal Corporation and that
any deviation in top elevation is solely attributable to
subsequent variation in ground elevation. It is submitted that
the failure of the Appellate Committee to consider the
petitioner's appeal and request for aeronautical study has
caused severe financial prejudice, as the petitioner has
invested substantial amounts in a project which now stands
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fully constructed but cannot be put to use. It is submitted that
in the absence of consideration of the petitioner's request, the
petitioner would be rendered remediless, which is violative of
principles of fairness and due process and adversely affects
the petitioner's right to seek effective legal recourse against
arbitrary action of statutory authorities.
13.1 It is further submitted that subsequent to the filing of the
present petition, a material development has taken place
which has a direct bearing on the issues involved herein. It is
submitted that the petition challenges, inter alia, the refusal
of the respondent authorities to conduct an aeronautical
survey and to consider the petitioner's request for revision of
permissible top elevation in respect of land bearing Survey
No. 20, Final Plot No. 51, Town Planning Scheme No. 75
(Muthiya-Hanspura), Sub Plot No. 1/1, situated at Village
Hanspura, Taluka Asarva, District Ahmedabad. It is submitted
that during the pendency of the petition, the petitioner has
consistently relied upon instances of similarly situated
projects being granted revised permissible top elevation by
the competent authority. It is now submitted that an adjoining
project situated on the very same Survey No. 20, Final Plot
No. 51, Town Planning Scheme No. 75, being Sub Plot No.
1/2, has been granted revised height clearance by the
competent authority, whereby the permissible top elevation
has been enhanced to 114.50 meters above mean sea level. It
is submitted that this subsequent development has a direct
and substantial bearing on the controversy involved, as both
properties form part of the same survey number and final plot
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under the same town planning scheme and are identically
situated in terms of geographical location and proximity to the
aerodrome. It is submitted that the grant of revised height
clearance in respect of the adjoining plot clearly demonstrates
that upward revision of permissible top elevation is
permissible in the subject area and that the respondent
authority has exercised such jurisdiction in respect of
similarly situated properties.
SUBMISSION OF THE RESPONDENT
Special Civil Application No. 3549 of 2024
14. At the outset, and without prejudice to the other
contentions, it is submitted that the present petition is
malafide, misleading, and an abuse of the process of this
Hon'ble Court. It is denied that the petitioner has lawfully
constructed the building or that the action of the respondents
is arbitrary or violative of principles of fairness. It is further
denied that the alleged breach of permissible top elevation
has occurred due to change in ground level. It is submitted
that the petitioner's structure is admittedly in violation of the
No Objection Certificate (NOC) issued by the Airports
Authority of India. It is submitted that the petitioner has failed
to appreciate the mandatory procedure under Aerodrome
Safeguarding Circulars (ADSAC) 05 and 08 of 2020, which
clearly provide that any application for revised NOC can be
entertained only after the structure is first brought into
conformity with the originally granted NOC and thereafter an
appeal may be preferred through the prescribed NOCAS
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portal. It is submitted that in the present case, since the
construction itself is in violation of the existing NOC, no
aeronautical survey can be conducted at this stage.
14.1 It is further denied that the ground elevation has
changed in the manner alleged by the petitioner. It is
submitted that the site elevation of 54.58 meters above mean
sea level was furnished by the petitioner itself at the time of
seeking NOC in 2020, and the petitioner cannot now resile
from its own representation. It is submitted that the
petitioner's plea regarding change in ground level is baseless
and an afterthought to justify an admitted breach of the NOC
conditions.
14.2 It is submitted that it is the sole responsibility of the
petitioner to ensure compliance with the sanctioned NOC, and
the respondent authority is only required to verify whether
the construction conforms to the granted clearance. It is
submitted that the respondents are not required to investigate
the reasons for violation.
14.3 It is further submitted that any appeal under Rule 11 of
GSR 751(E) is maintainable independently, and there is no
procedural bar. However, as per the applicable ADSAC
guidelines, consideration of revised NOC or aeronautical
study is permissible only when the structure conforms to the
original NOC conditions. The petitioner cannot be permitted
to take benefit of its own wrong, as such a course would
defeat the very purpose of aviation safety regulations and
open floodgates for unauthorized constructions followed by
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retrospective regularization.
14.4 It is further submitted that the petitioner itself admits
non-compliance with the NOC conditions, and therefore, the
present attempt to seek aeronautical survey or revision of
NOC is premature and not maintainable in law. It is reiterated
that the procedure prescribed under ADSAC 05 and 08 of
2020 is being strictly followed in order to ensure aviation
safety and public safety at large, and no deviation therefrom
is permissible.
SUBMISSION OF THE PETITIONER
Special Civil Application No. 11308 of 2024
15. Learned counsel for the petitioner submits that the towers
constructed by the petitioner are strictly in conformity with
the building permission granted by the Ahmedabad Municipal
Corporation, which itself is based on the permissible top
elevation specified by the Airports Authority of India. It is
submitted that the present situation, wherein the buildings
are alleged to exceed the permissible top elevation, has arisen
not on account of any additional or unauthorized construction
by the petitioner, but solely due to variation in the recorded
ground/surface elevation, a factor beyond the control of the
petitioner and not attributable to it in law. It is submitted that
in such circumstances, describing the petitioner's
construction as infringing the permissible top elevation limit
is arbitrary and erroneous. It is further submitted that the
respondents have erred in not considering the petitioner's
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request for conducting an aeronautical study, which is
necessary to assess whether the structure in question actually
causes any hindrance to air traffic movement or aircraft
operations. As per Clause 5 of Schedule II of the Ministry of
Civil Aviation (Height Restrictions for Safeguarding of Aircraft
Operations) Rules, 2015, an aeronautical study may be
conducted to determine whether an existing object adversely
affects the safety or operation of aircraft, the primary
objective being to ensure safe air navigation and efficient
utilization of airspace based on applicable flight procedures. It
is submitted that if upon such study it is conclusively
established that the structure causes any hindrance, the
petitioner undertakes to remove the excess portion; however,
the respondents cannot insist upon demolition without first
determining, through such study, whether the structure
actually constitutes a safety hazard. It is further submitted
that directing demolition of the existing structure at this stage
would be contrary to the object sought to be achieved by the
Ministry of Civil Aviation (Height Restrictions for
Safeguarding of Aircraft Operations) Rules, 2015 as well as
the Guidelines for Aeronautical Study issued by the Airports
Authority of India on 11.07.2014, inasmuch as the
requirement of an aeronautical study arises precisely in cases
where there is a discrepancy between the permissible height
under the NOC and the actual constructed height. In the
present case, the request for height clearance has been
rejected without conducting such a study, and therefore
appropriate directions deserve to be issued to the respondents
to conduct an aeronautical study without insisting upon prior
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demolition of the existing structure. It is further submitted
that the respondents have erred in refusing to grant revised
No Objection Certificate to the petitioner despite similarly
situated adjoining buildings having been granted revised
height permissions, thereby indicating arbitrariness and
discriminatory treatment.
15.1 It is submitted that there is every likelihood that the
petitioner's application would also merit acceptance, and in
such circumstances, requiring the petitioner to first demolish
the alleged excess construction and thereafter permitting
reconstruction upon grant of revised clearance would serve no
meaningful purpose and would only result in undue hardship,
inconvenience, and wastage of resources. The petitioner
reiterates that the construction has been carried out strictly in
accordance with the building permission issued by the
Ahmedabad Municipal Corporation, and no additional
construction beyond the sanctioned plan has been
undertaken. Although the overall top elevation may exceed
the limit specified in the No Objection Certificate issued by
the Airports Authority of India, such deviation is solely
attributable to subsequent variation in ground level elevation.
It is further submitted that the refusal to grant NOC and the
non-consideration of the request for aeronautical study have
caused severe financial prejudice, as substantial investments
have been made in a fully completed project which cannot be
put to use. The petitioner submits that in the absence of
consideration of the request for aeronautical study and height
revision, the petitioner would be rendered remediless, which
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is violative of the principles of fairness, reasonableness, and
due process, and adversely affects the petitioner's right to
seek effective legal recourse against arbitrary action of
statutory authorities. It is further submitted that the
impugned action and decision of the respondents are
arbitrary, illegal, and unsustainable in law.
SUBMISSION OF THE RESPONDENT
Special Civil Application No. 11308 of 2024
16. Learned counsel for the respondent has denied that the
ground elevation has changed from 53.5 meters to 58.2
meters in the manner alleged by the petitioner. The said
averment is baseless, misconceived, and an afterthought,
introduced to justify an admitted breach of the conditions of
the No Objection Certificate. It is further submitted that the
petitioner cannot now be permitted to take shelter under the
plea of change in ground elevation, particularly when the
NOC was granted on the basis of site elevation of 53.5 meters
above mean sea level, as declared and submitted by the
petitioner itself at the relevant time. It is submitted that the
petitioner, having obtained the benefit of the NOC on the
basis of its own representations, is estopped from disputing
the same. It is further submitted that since the construction is
admittedly not in conformity with the granted NOC, the
petitioner is first required to bring the structure in
compliance with the sanctioned NOC conditions, and only
thereafter can any request for survey or revision be
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considered in accordance with the applicable rules and
circulars.
16.1 Learned counsel for the respondent has denied that the
alleged excess in permissible top elevation has arisen due to
any fortuitous change in ground level. It is submitted that the
site elevation of 53.5 meters above mean sea level was
specifically furnished by the petitioner itself at the time of
applying for the NOC in 2019, and the same formed the basis
for grant of height clearance. It is submitted that the
petitioner cannot now resile from its own declared and
accepted data in order to justify a violation of the NOC
conditions. It is submitted that the allegations regarding
subsequent change in ground level are therefore incorrect,
misleading, and not supported by any credible material.
SUBMISSION OF THE PETITIONER
Special Civil Application No. 4052 of 2024
17. Learned counsel for the petitioner submits that the
Impugned Order dated 15.01.2024 as well as the Impugned
Decision dated 15.12.2023 (communicated on 30.01.2024) are
illegal, perverse, arbitrary, and bad in law. It is submitted that
the impugned actions are ex facie violative of the principles of
natural justice, inasmuch as while passing the Impugned
Order dated 15.01.2024, Respondent No. 2 was fully aware of
the decision dated 15.12.2023 rejecting the application for
revised NOC, which was communicated to the petitioner only
on 30.01.2024, yet the same has not been dealt with or even
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referred to in the Impugned Order, thereby giving rise to
serious doubts regarding the manner in which the decision
has been taken. It is further submitted that there was no
justifiable reason for communicating the decision dated
15.12.2023 to the petitioner only on 30.01.2024, i.e. after
passing of the Impugned Order dated 15.01.2024. At no stage
was the petitioner afforded any opportunity to present its case
as mandated in law, more particularly under Rule 6A of the
relevant Rules of 1994.
17.1 It is further submitted that the action of the respondent
authority is wholly arbitrary, inasmuch as similarly situated
adjacent buildings, namely "Ornet Heights" and "Maple
Heights," have been granted permissible top elevations of
108.37 meters and 106.24 meters respectively, which are
higher than that of the petitioner. The impugned order also
fails to consider that the said buildings are located in closer
proximity to the airport as compared to the petitioner's
project "Radhe Skyline-2," thereby rendering the impugned
action discriminatory and violative of Article 14 of the
Constitution of India. It is further submitted that the
Impugned Decision dated 15.12.2023 (communicated on
30.01.2024) has been passed without assigning any reasons
whatsoever and without affording any opportunity of hearing
to the petitioner, as mandatorily required under Rule 6A of
the Rules of 1994, and is therefore a non-speaking, arbitrary
and unsustainable decision.
17.2 It is further submitted that the No Objection Certificate
granted on 13.09.2019 permitted construction up to 42.20
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meters from ground level after taking into consideration the
ground elevation of 60.43 meters above mean sea level. The
Ahmedabad Municipal Corporation (AMC) has approved the
construction height and has conducted periodic
inspections/verification confirming that the construction is in
accordance with the sanctioned plans, including height.
Therefore, the direction now issued requiring the petitioner to
remove or demolish a part of the constructed structure is
wholly illegal, arbitrary, and contrary to law. It is reiterated
that the height of the building is strictly in accordance with
the NOC dated 13.09.2019 and the sanctioned plans issued by
AUDA/AMC.
17.3 It is further submitted that the due process prescribed
under the applicable statutory framework, namely the Act
read with the 2015 Rules and the Rules of 1994, has not been
followed. In this regard, it is submitted that no notification as
mandated under Section 9A of the Act read with Rule 3 of the
Rules of 1994 has been served upon the petitioner. Further, in
terms of Rule 5 of the Rules of 1994, reasonable prior notice
is required to be given to the owner before any physical
verification is undertaken; however, in the present case, no
such notice was issued, and the petitioner was not present at
the time of alleged verification. Moreover, Rule 6A mandates
that an opportunity of hearing must be granted to the owner
prior to taking any decision; in the present case, no such
opportunity was granted before passing the impugned
decision.
17.4 It is further submitted that the impugned action suffers
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from gross arbitrariness and discrimination, particularly in
view of the fact that while rejecting the petitioner's
application for revised NOC, the respondent authority has
simultaneously granted revised NOC to similarly situated
adjacent buildings with higher permissible top elevations,
without any justifiable basis or reasoning. It is well settled
that statutory powers must be exercised in a fair, reasonable,
non-arbitrary, and non-discriminatory manner, and any
deviation therefrom renders the action illegal and void.
17.5 It is further submitted that the petitioner has been left in
a state of complete procedural uncertainty, inasmuch as the
decision rejecting the application was taken without hearing
the petitioner on 15.12.2023, the Impugned Order dated
15.01.2024 was passed without reference to the said decision,
and thereafter the said decision was communicated only on
30.01.2024. As a result, the appellate remedy under Rule 6A
of the Rules of 1994 stands rendered illusory and an empty
formality, as the petitioner is required to challenge an order
passed without due process before the very authority which
has already pre-decided the matter. Such a procedure is
unknown to law and violates principles of natural justice, due
process, and fair play.
17.6 It is further submitted that in view of the aforesaid gross
illegalities, the impugned directions requiring the petitioner
to reduce the height of alleged obstructions such as overhead
tank, lift room, parapet wall, and slab top of Building Blocks
A, B, C, and D to a permissible limit of 105.12 meters are
wholly arbitrary, draconian, and unsustainable in law, and are
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liable to be quashed and set aside.
17.7 It is submitted that the impugned order as well as the
impugned decision are arbitrary, perverse, and violative of the
petitioner's fundamental rights under Articles 14, 19, 265,
and 300A of the Constitution of India. It is further submitted
that the impugned action, being contrary to law and vitiated
by non-compliance of mandatory procedure, deserves to be
quashed and set aside.
SUBMISSION OF THE RESPONDENT
Special Civil Application No. 4052 of 2024
18. Learned counsel for the respondent denied that the Final
Order dated 15.01.2024 was passed by Respondent No. 2
without affording any opportunity of hearing to the petitioner.
It is submitted that the Decision dated 15.12.2023 has been
taken by the Appellate Committee strictly in accordance with
the prescribed procedure under Aerodrome Safeguarding
Circular (ADSAC) 05 and 08 of 2020, and there is no violation
of principles of natural justice as alleged.
18.1 With respect to Para 1(f), it is denied that there is any
illegality in the impugned action. It is submitted that as per
the NOC dated 13.09.2019, the petitioner was permitted a
maximum height of 102.70 meters AMSL; however, the
petitioner has constructed up to 106.24 meters AMSL, which
is in clear violation of the sanctioned NOC issued by AMC as
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well as the answering respondent.
18.2 With respect to Para 4(B) and (C), it is denied that
Respondent No. 2 was required to consider the Decision dated
15.12.2023 while passing the Order dated 15.01.2024. It is
submitted that both proceedings are independent, the former
being under ADSAC 08 of 2020 and the latter under Rule 6 of
the 1994 Rules, and therefore no such co-relation is required
in law.
18.3 With respect to Para 4(D), it is denied that Rule 6A of the
1994 Rules governs the process of revised NOC. It is
submitted that revised NOC proceedings are governed strictly
by ADSAC 08 of 2020, and not by Rule 6A, which applies to
appellate proceedings. with respect to Para 4(J), it is denied
that the impugned action is discriminatory. It is submitted
that revised NOCs granted to adjacent buildings were issued
strictly in accordance with applicable procedure after
compliance with mandatory requirements under ADSAC
guidelines, and for valid and justified reasons as recorded in
the respective cases. with respect to Para 4(K) and (L), it is
submitted that the respondent authorities have acted strictly
in accordance with GSR 751(E), the 1994 Rules, and ADSAC
05 and 08 of 2020, and therefore the impugned decision and
order are legal, valid, and in consonance with law. With
respect to Para 4(M), it is denied that there is any procedural
illegality. It is submitted that the impugned Decision dated
15.12.2023 has been passed under ADSAC 08 of 2020 and the
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impugned Order dated 15.01.2024 under Rule 6 of the 1994
Rules. An efficacious statutory remedy of appeal under Rule
6A of the 1994 Rules is available to the petitioner against the
impugned order, and the petitioner is required to avail the
same.
SUBMISSION OF THE PETITIONER
Special Civil Application No. 11656 / 11675 / 11584
of 2024
19. Learned counsel for the petitioners submits that the
towers constructed by the petitioner are strictly in conformity
with the building permission granted by the Ahmedabad
Municipal Corporation, which is itself based on the
permissible top elevation specified by the Airports Authority
of India. It is submitted that the present situation, wherein the
buildings are stated to be exceeding the permissible top
elevation, has arisen not on account of any additional
construction carried out by the petitioner beyond the
sanctioned permission, but solely due to variation in the
recorded ground/surface elevation, a factor wholly beyond the
control of the petitioner and not attributable to it in law. In
such circumstances, characterizing the petitioner's
construction as infringing the permissible top elevation limit
is arbitrary, erroneous, and unsustainable.
19.1 Learned counsel for the petitioners submits that the
respondents have erred in not considering the petitioner's
request for conducting an aeronautical study, which is
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essential to determine whether the permission granted by the
Ahmedabad Municipal Corporation and the Airports Authority
of India would in any manner cause hindrance to air traffic
movement or aircraft operations. It is submitted that under
Clause 5 of Schedule II of the Ministry of Civil Aviation
(Height Restrictions for Safeguarding of Aircraft Operations)
Rules, 2015, an aeronautical study may be conducted to
determine whether an existing object adversely affects the
safety or operation of aircraft. It is submitted that the primary
objective of such study is to ensure the safety of air navigation
and efficient utilization of airspace and airport infrastructure
based on instrument and visual flight procedures in operation
and those planned for normal aircraft operations. It is
submitted that if, upon such study, it is conclusively
established that the structure causes any aviation hazard, the
petitioner undertakes to remove the excess portion. However,
the respondents cannot insist upon demolition without first
determining, through such study, whether the structure
actually constitutes a safety concern.
19.2 Learned counsel for the petitioner further submits that
directing demolition of the existing structure would be
contrary to the object sought to be achieved by the Ministry of
Civil Aviation (Height Restrictions for Safeguarding of Aircraft
Operations) Rules, 2015, as well as the Guidelines for
Aeronautical Study issued by the Airports Authority of India
on 11.07.2014. The requirement of an aeronautical study
arises precisely at the stage where there is a discrepancy
between the height permitted under the No Objection
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Certificate and the actual constructed height. In the present
case, appropriate directions deserve to be issued to the
respondents to conduct an aeronautical study without
insisting upon prior demolition of the existing structure. It is
further submitted that similarly situated adjoining buildings
have been granted revised permissions; therefore, there exists
a reasonable possibility that the petitioner's application may
also be allowed. In such circumstances, no useful purpose
would be served by first requiring demolition of the alleged
excess construction and thereafter permitting reconstruction
upon grant of revised clearance, as it would only result in
unnecessary hardship, inconvenience, and wastage of
resources.
19.3 Learned counsel for the petitioner submits that the
construction has been carried out strictly in accordance with
the building permission issued by the Ahmedabad Municipal
Corporation, and no additional construction exceeding the
sanctioned plan has been undertaken. Although the overall
height of the buildings may exceed the maximum permissible
height under the No Objection Certificate issued by the
Airports Authority of India, such deviation has arisen solely
due to subsequent variation in the ground level elevation. It is
further submitted that the non-consideration of the
petitioner's request for an aeronautical study has resulted in
severe financial prejudice, as substantial investment has been
made in the project and the building stands fully constructed.
SUBMISSION OF THE RESPONDENT
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Special Civil Application No. 11656 / 11675 / 11584
of 2024
20. Learned counsel for the respondent has denied that the
ground elevation has altered from 53.5 meters to 57.19
meters on its own. He has submitted that the said averment is
false, baseless, and an afterthought raised to justify an
admitted breach of the conditions of the No Objection
Certificate. It is further submitted that the petitioners cannot
now be permitted to take advantage of such a plea,
particularly when the NOC was granted on the basis of the
site elevation of 53.5 meters above mean sea level as
furnished by the petitioners. The petitioners, having obtained
the benefit of the NOC on the strength of its own
representations, is estopped from disputing the correctness
thereof. It is further submitted that since the construction is
admittedly not in conformity with the granted NOC, the
petitioners are required to first bring the structure in
compliance with the sanctioned NOC conditions, and only
thereafter can any request for aeronautical study be
considered in accordance with the applicable rules and
circulars.
20.1 Learned counsel for the respondents denied that the
alleged excess in permissible top elevation is due to any
fortuitous change in ground level. The site elevation of 59.82
meters above mean sea level was specifically declared and
submitted by the petitioners at the time of seeking the NOC in
2019, and the same formed the basis for grant of height
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clearance. The petitioners cannot now resile from its own
declared and accepted data. It is further submitted that as per
the conditions contained in the NOC dated 29.04.2019, the
permissible top elevation has been granted solely on the basis
of site coordinates and site elevation submitted by the
applicants, and the Airports Authority of India neither
assumes responsibility nor authenticates the correctness of
such data. The said condition further stipulates that if at any
stage it is found that the actual data is different, the NOC
shall stand null and void and action shall be taken in
accordance with law, including initiation of proceedings under
the Aircraft (Demolition of Obstruction caused by Buildings
and Trees etc.) Rules, 1994. In view thereof, it is submitted
that the petitioners are responsible for providing incorrect
data, and consequently the construction is in violation of the
NOC conditions. It is further submitted that such structure
does not qualify as an "existing object" under GSR 751(E),
and therefore no aeronautical study can be conducted in
respect thereof.
21. In support of her argument, learned counsel for the
petitioner has relied upon the decisions of the High Court of
Delhi in case of KGA Investments vs. Union of India and
Ors. dated 20.11.2018 passed in W.P.(C) 9509 of 2018 &
C.M. No.38741 of 2018 and in the case of M/s. Rajasthan
Patrika Private Limited vs. Union of India and Ors.
dated 24.2.2025 passed in W.P.(C) 896 of 2025 & CM
APPL.4400 of 2025 (stay) and submits that present
petitions may be allowed.
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22. In view of the above, Mr. Bhadrish Raju, learned counsel
for the respondent submits that all these orders passed by the
Delhi High Court is having a persuasive value and it is not
binding upon this Court, however he is unable to controvert
the orders passed by the Delhi High Court.
ANALYSIS
23. I have perused the relevant documents and material
placed on record. I have also gone through the record of the
petition as well as the relevant facts of the petitions.
24. It appears that the petitioners had applied for an
aeronautical survey to be carried out by the International Civil
Aviation Organization at the petitioner's expense; however,
the said request was denied by the respondent authority on
the ground that the petitioners had breached the permission
granted to them. According to the respondents, permission
was granted for construction up to 102.7 meters, whereas the
existing construction measures is more than 102.7 meters.
Consequently, a notice came to be issued directing the
petitioners to stop the construction on the ground that it was
in breach of the granted permission. In response thereto, the
petitioners submitted a reply contending that the construction
was within the permissible limit; however, without prejudice,
it requested that, if the construction is found to be beyond the
permissible limit, an aeronautical re-survey be conducted. The
said request was rejected by the respondent authority solely
by relying upon the provisions of the relevant circular.
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25. The petitioners have pressed into service the orders
passed by the Delhi High Court in the cases of KGA
Investments (supra) and M/s. Rajasthan Patrika Private
Limited (supra), wherein an identical issue was considered
and decided. The Delhi High Court dealt with the contention
raised by the respondents that, since the petitioners had
committed a breach by exceeding the maximum permissible
height sanctioned under the applicable aviation regulations,
the authority was justified in directing the petitioners to
remove the objectionable construction, and only thereafter
would an aeronautical survey be conducted.
26. This issue has been raised by all the petitioners in the
present group of petitions. Their submission is that, before
requiring removal of the said construction, the authority
should first satisfy itself by conducting a fresh aeronautical
survey at the cost of the petitioners. However, the
respondents refused to accept this request, and therefore, the
Court is required to examine this issue.
27. Upon considering the rival submissions of the parties, I
am of the opinion that the prayer made by the petitioners for
conducting an aeronautical survey/study--so as to assess
whether the existing structure adversely affects, or is likely to
significantly affect, the safety and regularity of aircraft
operations at the concerned airport--deserves consideration,
even while keeping in mind the objections raised by the
respondents.
28. It is true that, as per the stand of the respondents, the
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petitioners have committed a breach by violating the N.O.C.
granted by the authority and by raising construction beyond
the permissible limits, thereby contravening Rule 7 of GSR
751(E) as well as the conditions stipulated in the relevant
circular, particularly Clause 6.2.1. which reads as under:-
"The appeal for the aeronautical study shall not be
considered under the following circumstances:-
6.2.1 The appellant has violated any of the terms and
conditions of the duly issued NOC, including the
permitted top elevation."
29. Considering another angle, the decision of the
respondents with regard to denying the request made by the
petitioners is completely irrational and arbitrary. In the case
of identically or similarly situated persons in the nearby area,
the authority has considered such cases, however, the request
made by the petitioners was turned down only on the ground
that first they shall remove the disputed construction, and
only thereafter the request for an aeronautical study can be
considered, which itself is irrational and arbitrary. Equally,
important and indeed fundamental to the policy in the Indian
Law that a court and so also a quasi-judicial the executive
functionary must, while determining the rights and
obligations of parties before it, do so in accordance with the
principles of natural justice. That the quasi-judicial / executive
functionaries / authority deciding the matter must apply its
mind to the attendant facts and circumstances while taking a
view one way or other. Non-application of mind is a defect
that is fatal to any adjudication.
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30. Application of mind is best demonstrated by disclosure of
the mind and disclosure of mind is best done by recording the
reasons in support of the decision which the court or authority
is taking. The adjudicatory authority must apply its mind is in
that view, so deeply embodied in our jurisprudence that it can
be described as a fundamental policy of our Indian Law. A
decision which is arbitrary or irrational, such that no
reasonable person would have arrived at the same, will not be
sustained in a court of law.
31. This arbitrariness and irrationality of decision is tested on
the touchstone. The standard of reasonableness is open to
challenge in a court of law. n the present case, from the
perusal of the record, the petitioners have pointed out the
decision rendered by the Delhi High Court in a similar set of
facts; however, the authority, without considering the same,
has directed the petitioners to first remove the construction as
directed by the authority, and only thereafter will consider the
request for an aeronautical study of the structure in question,
which is completely erroneous, irrational, and arbitrary.
Therefore, in such circumstances, this Court exercises
jurisdiction under Article 226 of the Constitution of India, as it
amounts to a complete violation of the fundamental rights
guaranteed under Articles 14 and 16. Further, upon perusal of
the decision rendered by the Delhi High Court, I am in
complete agreement with the same, and therefore, the
petition is required to be entertained.
32. The insistence of the respondents that the petitioners
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must first remove the objectionable portion of the
construction before any such survey is conducted is
unjustified and untenable in the facts of the present case.
33. In order to arrive at a just and proper conclusion, the
request of the petitioners ought to be considered in the first
instance, and an aeronautical survey should be conducted at
their cost. Accordingly, the stand taken by the respondents
cannot be sustained.
34. A perusal of GSR 751(E), namely the Ministry of Civil
Aviation (Height Restrictions for Safeguarding of Aircraft
Operations) Rules, 2015, reveals that the same incorporates
the concept of "shielding criteria" and provides for the
conduct of an aeronautical study as well as a CNS simulation
study for the purpose of assessing the maximum permissible
height of structures, particularly in cases where such
structures fall within the shadow of a higher natural terrain or
permanent structure. The maximum permissible height of a
structure may be determined on the basis of the said shielding
criteria, provided that the proposed or existing structure is
located in proximity to an obstacle of equal or greater height
and does not pose any risk to aviation safety.
35. After considering the relevant rules and provisions, the
Delhi High Court had occasion to deal with similar arguments
advanced by the respondents in denying the petitioner's
request. In those circumstances, the Court, after examining
its earlier decisions in M/s. DBS Reality vs. Union of India
(2018 DHC 686) and KGA Investments (supra), arrived at
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a conclusion and passed the order.
36. While denying the similar dispensation to the petitioners
would amount to discrimination and arbitrary treatment of the
petitioners, which leads to a violation of Article 14 of the
Constitution of India. While recording the reasons and after
considering the guidelines for concluding the aeronautical
study issued by the Aerodrome Safeguarding Circular
(ADSAC) 05 of 2020, it is specifically provided that the
conduct of an aeronautical study shall be subject to a fee of
Rs. 20 Lakhs plus applicable GST, and the petitioners are
willing to bear the requisite charges and also undertakes to
abide by the findings of the aeronautical study, it seems that
the petitions are required to be allowed and the respondents
are directed to complete the aeronautical study at the cost of
the petitioners, as prayed for in the present petitions.
37. While looking at the Aeronautical Study Guidelines as
outlined in the Aerodrome Safeguarding Circular (ADSAC) 05
of 2020, it is evident that the same is in derogation of the
provisions of GSR 751(E), and upon perusal thereof, there is
no restriction or any embargo on conducting an aeronautical
study to determine the maximum permissible height of the
structure solely based upon Circular Clause 6.2, when a No
Objection Certificate is issued by the Airport Authority of
India; the same is required to be construed in alignment with
GSR 751(E), and on referring to the same, it cannot be
construed as an embargo or any restriction which cannot be
imposed in the absence of any statutory provision contained in
rules viz. GSR 751(E), or in case of any inconsistency, or in
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the absence of any rules. Therefore the Delhi High Court,
while examining the said eventuality, ultimately passed the
order and allowed the petition and directed the respondents
to carry the aeronautical study at the cost of the petitioners.
38. At this stage, it is also appropriate to refer the decision
of the Delhi High Court in case of Manav Infrastructure
Pvt. Ltd vs. Union of India dated 4.4.2022 in W.P.(C)
No.13963 of 2021, wherein identical issue has been decided
by the Delhi High Court.
39. In view of the above, and in view of the decisions of the
Delhi High Court in cases of KGA Investments (supra),
M/s. Rajasthan Patrika Private Limited (supra) and
Manav Infrastructure (supra), the decision of denying the
request of the petitioners is hereby rejected. Even the notices
issued, directing that the objectionable construction be
removed before carrying out the aeronautical survey/study,
are also quashed and set aside. If any communication issued
by the respondents subsequently after filing of the petitions is
also quashed and set aside, the respondents are hereby
directed to consider the findings of the aeronautical
survey/study which is directed to be conducted hereinabove,
and to pass a fresh order determining the maximum
permissible heights of the petitioners' structures. If there is
any violation of the construction permission granted by the
authority, after taking into account the findings of the
aeronautical survey/study, it is open for the respondents to
take appropriate steps; and if it is ultimately found that the
petitioners have committed a breach/violation of the
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permission, then to remove the objectionable structure at the
cost of the petitioners. The respondents are hereby directed to
carry out the aeronautical survey/study of the structure in
question, at the cost of the petitioners, as early as possible.
40. For the foregoing reasons, all the petitions are allowed.
Rule is made absolute to the aforesaid extent. The connected
Civil Applications also stands disposed of.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
