Bombay High Court Quashes AAI’s Refusal to Issue NOC: “Vested Rights Cannot Be Defeated by Minor Procedural Lapses”; Directs Airports Authority of India to Grant Height Clearance for Slum Rehabilitation Project

Court’s Decision

The Bombay High Court quashed the Airports Authority of India’s (AAI) refusal to issue a No Objection Certificate (NOC) for height clearance to the petitioners’ building project. The court ruled that the petitioners had a vested right to the approved height clearance of 84.92 meters AMSL, which had been sanctioned by the Appellate Committee in 2015-2016. The only reason for the denial was a minor procedural lapse—the omission of the witnesses’ addresses and the name of the signatory on the undertaking—which the court found to be non-substantive and curable.

The court held that the petitioners cannot be made to comply with new aeronautical height norms and rejected AAI’s argument that the approval had “lapsed” due to delay. It directed the AAI to issue the NOC within four weeks and denied AAI’s request for a stay, considering the public interest in completing the slum rehabilitation project.

Facts of the Case

The petitioners are developers implementing a Slum Rehabilitation Scheme (SRA) at Chembur, Mumbai. They applied for height clearance from the AAI to construct buildings as part of the project.

1. 2013 – The AAI granted an NOC allowing a height clearance of 56.90 meters AMSL.
2. 2015 – The petitioners appealed for height clearance of 84.92 meters AMSL, and the Appellate Committee approved their request on 27 August 2015.
3. 2016 – AAI issued an authorization letter on 11 July 2016, directing the issuance of a revised NOC for 84.92 meters AMSL.
4. Petitioners submitted an undertaking as required, but AAI pointed out a minor omission—the witnesses’ addresses and the name of the signatory were missing.
5. 2023 – The petitioners resubmitted the corrected undertaking, but AAI refused to issue the NOC, citing changes in aeronautical norms.
6. AAI argued that the petitioners’ application had lapsed and required reassessment under new rules.

Thus, the petitioners approached the Bombay High Court seeking a writ of certiorari (to quash the AAI’s rejection) and a writ of mandamus (to compel AAI to issue the NOC).

Issues Before the Court

1. Whether AAI’s refusal to issue the NOC due to a minor procedural lapse was justified.
2. Whether the petitioners should be subjected to new height clearance norms despite prior approval.
3. Whether the lapse in providing complete undertaking details invalidated the original height approval.
4. Whether the petitioners had a vested right to the clearance of 84.92 meters AMSL as per the 2015-2016 approval.

Petitioner’s Arguments

The petitioners, represented by Senior Advocate Dr. Virendra Tulzapurkar, argued:

1. AAI’s refusal was arbitrary and disproportionate
   • The approval was granted in 2015-2016, and the petitioners had fully complied with the substantive requirements.
   • The only issue was a minor procedural omission in the undertaking, which was curable and did not affect their right to the NOC.
2. Applying new aeronautical height norms retrospectively was unfair
   • The Appellate Committee approved 84.92 meters AMSL in 2015 under existing rules.
   • Applying new norms after nearly a decade would violate legitimate expectations.
3. Significant delays in the project would impact slum dwellers
   • The height reduction would force the petitioners to remove 3 floors from their buildings, affecting 142 slum dwellers awaiting rehabilitation.
4. Other nearby buildings were granted similar height clearances
   • Several projects in the same vicinity had been granted height clearances under the same 2015 norms, making AAI’s stance discriminatory.

Respondent’s Arguments (AAI & Appellate Committee)

AAI, represented by Advocate Mayur Shetty, argued:

1. Failure to comply with procedural requirements
   • The petitioners failed to submit a complete undertaking in 2016, despite being notified of the deficiency.
   • Due to this failure, the application lapsed, and a fresh assessment under new height norms was required.
2. New height norms must apply
   • Aerodrome data has changed since 2016—hence, an updated aeronautical study is required.
   • The likely new permissible height would be 68-69 meters AMSL, significantly lower than the 84.92 meters AMSL approved earlier.
3. Judicial review should not interfere with expert technical decisions
   • The court should not override AAI’s discretion in technical matters.

Analysis of the Law

1. Ministry of Civil Aviation Rules

• The Ministry of Civil Aviation (Height Restrictions for Safeguarding Aircraft Operations) Rules, 2020 & 2023 amendments allow NOCs to be extended for up to 12 years.
• The petitioners’ case falls within this period, meaning their clearance should not have been revoked.

2. Doctrine of Legitimate Expectations

• Since the Appellate Committee had already approved 84.92 meters AMSL, the petitioners had a legitimate expectation that AAI would honor its decision.

3. Application of New Norms Cannot Be Retrospective

• Kalpataru Ltd. v. Union of India (2020 SCC OnLine Bom 737) – Courts have held that new aeronautical rules cannot retroactively invalidate an earlier valid approval.

Precedent Analysis

1. Tata Cellular v. Union of India (1994) 6 SCC 654
   • Courts have limited power of judicial review in technical matters but can intervene if a decision is arbitrary.
2. Chetak Co-op Housing Society Ltd. v. Union of India
   • Courts upheld validly issued AAI height clearances, stating that AAI must honor prior commitments.
3. Kalpataru Ltd. v. Union of India
   • Courts held that AAI could not apply new norms retrospectively.

Court’s Reasoning

1. AAI’s refusal was disproportionate and unfair
   • The only lapse was a minor clerical issue, which was not a ground for rejecting an NOC.
2. Petitioners were unfairly treated as fresh applicants
   • AAI’s own Appellate Committee had approved the height clearance in 2016.
3. No aviation safety concerns were raised
   • AAI failed to demonstrate how granting the NOC posed a risk.
4. Applying new rules retrospectively was unjustified
   • Several neighboring buildings were granted approvals under the 2015 norms, making AAI’s argument discriminatory.

Conclusion

The Bombay High Court allowed the petition and directed AAI to issue the NOC for 84.92 meters AMSL within four weeks. It rejected AAI’s request for a stay, citing that the slum rehabilitation project had already suffered delays.

Implications of the Judgment

1. Prevents arbitrary denials of NOCs
   • Developers cannot be denied clearance due to minor procedural lapses.
2. Strengthens the doctrine of legitimate expectations
   • Authorities cannot revoke approvals based on procedural technicalities.
3. Reaffirms judicial intervention in administrative excess
   • Courts will intervene if bureaucratic decisions unfairly delay public welfare projects.

This ruling sets a significant precedent in aviation and real estate law, ensuring that authorities cannot revoke valid approvals for non-substantive reasons.

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