HEIGHT RESTRICTIONS JUDGMENT IN GROUP MATTER OF KALPATARU HITS AND MISSES

This Blog is only limited to the point of law on the basis of which observations are made and order is passed. This is very significant Judgment because the site in question is in the vicinity of International Airport and application of builder is for increase in height as permissible. The case of the Respondent is rejected because the height restrictions were capped on basis of 12th April 2018, draft rules vide Notification No. GSR 365 published by Union of India Respondent in the matter.

Another caution is after this order top floors will be sold out and it is the Bank, Flat Purchaser and investors will be the sufferers. This Judgment is certainly giving rise to high rises in the vicinity.

The specific statement from the Union of India is must else there are rulings of Supreme Court that, draft rules can be acted upon if there is intention of the Government to implement the same.

Para 41 of the said Judgment is an operative part of final Judgment:

41. As already mentioned above, the impugned NOC’s were also based on the decision of the Appellate Committee and not granted in accordance with the provisions of the 2015 Rules. For the reason stated above, we are of the view that the impugned NOC’s have not been issued in accordance with the provisions of the 2015 Rules and are therefore also liable to be quashed and set aside and the Writ Petitions are allowed in terms of prayer (b) but only to the extent of the first part thereof, which seeks quashing of the impugned NOC’s. It is made clear that by this order we are not issuing any direction to the Respondents to issue a revised NOC of any particular height as prayed for in the latter part of prayer (b). Respondent No. 2 will consider the applications for grant of NOC afresh in accordance with the provisions of the 2015 Rules and issue its NOC strictly in accordance with law within a period of four weeks from the date of pronouncement of this Judgment. This is of course, if in the meanwhile, the draft 2018 Rules or any other form of legislation has not been brought into force. If it has, then the grant of NOC will be governed by the new legislation.

Case pleaded by Petitioners:

Three Writ Petitions that were heard together arise from very similar facts and raise identical issues and are therefore being disposed of by a common order and judgment.

Facts:

Petitioner, Kalpataru Ltd. Is developing three plots all of which are at Village Kole Kalyan, Santacruz, East. The frst plot, in respect of which the Petitioner is also the owner, is CTS No. 4100 (“Plot No. 1”); the second plot is sub-divided Plot No. A of CTS No. 4106 and 4108 (“Plot No. 2”); and the third plot is sub-divided Plot No. B of CTS No. 4106 and CTS No. 7632 (“Plot No. 3”).

Plot Nos. 1, 2 and 3 (hereinafter referred to as the “said Plots”) are at a distance of 2548 meters (Plot No.1), 2439.44 meters (Plot No. 2) and 2387.81 meters (Plot No. 3), respectively, from one of the existing Airport Surveillance Radar (“ASR”) that services the Mumbai International Airport. This factual position is not disputed by the Respondents.

Law Argued :

On 30th September 2015, Respondent No. 1 issued Notification No. GSR 751 (E) by which the Ministry of Civil Aviation (Height Restrictions for Safeguarding of Aircraft Operations) Rules, 2015 (hereinafter the “2015 Rules”) were notified.

Law Disputed:

On 12th April 2018, Respondent No. 1 published draft rules vide Notification No. GSR 365(E), inviting objections and suggestions in respect of the draft rules as published (hereinafter the “Draft 2018 Rules”). By the Draft 2018 Rules certain amendments have been proposed to the 2015 Rules, including in respect of the manner in which the permissible height for development of a plot in the vicinity of an airport is determined.  

Impugned Order:

On 23rd April 2019, Respondent No. 3 (“the Appellate Committee”) in its meeting at which it was considering various appeals filed by different parties, also took a decision to adopt, at Agenda 19, the parameters contained in the Draft 2018 Rules as the criterion for clearing projects for maximum permissible height. The specific draft Rule is the proposed amendment to Rule 2.5.2.2 of Schedule II, prescribes the requirement of a plot being more than two kilo-metres away from all the ASR’s to be entitled to the benefit of the maximum permissible height. There is no dispute that at that time the 2015 Rules were in force and the criterion adopted by the Appellate Committee was based on the Draft 2018 Rules.

On 29th August 2019, Respondent No. 2 issued the impugned NOC’s granting a reduced permissible top elevation of  44.68 meters             (Plot No. 1), 43.10 meters (Plot No. 2) and 43.55 meters (Plot No. 3), respectively. According to the Petitioner the permissible top elevations of maximum height that it would be entitled to in respect of the said Plots is 57.65 meters (Plot No. 1), 56.03 meters (Plot No. 2) and 55.25 meters (Plot No. 3), respectively, Above Mean Sea Level (“AMSL”). The aforesaid NOC’s are impugned in Writ Petition (L) No. 3646 of 2019. Similar NOC’s of different dates are the subject matter of challenge in the connected Writ Petitions.

Points of law Not argued :

Vimal Kumari vs. State of Haryana (1998) 4 SCC 114

The  Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the government to regulate the service conditions of the employees for whom the Rules are made by those Rules even in their “draft stage” provided there is clear intention on the part of the government to enforce those Rules in the near future. Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the Rules at all, as is evident in the instant case, recourse to “Draft Rules” cannot be taken. Such Draft Rules cannot be treated to be Rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the Draft Rules nor can such Draft Rules exclude the jurisdiction of the government, or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them

In High Court of Gujarat Versus Gujarat Kishan Mazdoor Panchayat 2003 AIR(SC) 1201 : 2003 AIR(SCW) 1578 : 2003 (4) All.M.R. 389 it was held that, It is now trite that draft rules which are made to lie in a nascent state for a long time cannot be the basis for making appointment or recommendation. Rules even in their draft stage can be acted upon provided there is a clear intention on the part of the Government to enforce those rules in the near future.

My View :

Counsel for Respondent did not make any statement that, there is no intention of Government to implement draft rules in question.

Judgments:

This was pertaining to the security and terrorism however wordings are noteworthy.

In the case of Akbar Travel of India (Pvt.) Ltd. v. Union of India, W.P. No. 656/2009, the Division Bench has observed in paragraph 31 thus: “31. We cannot transgress the limits of writ jurisdiction by sitting in judgment over the actions of Intelligence Agencies. These agencies manned by experts, who are in the best are position to judge the security interests. Ultimately, sensitive and vital installations have to be safeguarded and protected from entry of persons who are considered to be undesirable and a security risk. Precisely, such are the inputs in the reports which have been received and if the Bureau has acted upon the same, then, we cannot sit in judgment over their decision. The writ Court does not possess any expertise in such cases. The Court cannot indulge in guess work and hold that the inputs do not endanger the security of the Airport nor public interest demand that the ground handling operations of the petitioner be prohibited. These are matters which are better left to the authorities in charge of security of the vital installations as they are in-charge of laying down standards and norms for protecting and safeguarding them. They act in public interest and when no mala fides are alleged, their actions ought not be interfered.”

 In the case of Narangs International Hotels Pvt. Ltd., WRIT PETITION (LODGING) NO. 1105 OF 2011 the Division Bench of this Court observed in paragraph 11 thus:— “11. Having considered the rival contentions, we are of the opinion that this is a case where this court cannot interfere with the impugned order which rejects the security clearance on the basis of the report of the Intelligence Bureau. We have perused the report of the Intelligence Bureau. We have no reason to disbelieve it. We cannot sit in appeal over the said report. This case involves the security of India and more particularly the security of the Airports. Intelligence Bureau is an expert body. The petitioners have not alleged any mala fides. It is impossible to say that any extraneous reasons have persuaded the Intelligence Bureau to submit the report or that respondent 1’s action is mala fide.”

Janhit Manch vs State Of Maharashtra  on 2 November, 2018

Bench: Justice A.S. Oka

87. If a provision or statute permits en-bloc regularization of illegal construction by completely overriding the provisions of the MRTP Act ,DCR and draft or Development/Regional Plan it will surely constitute violation of Article 21 of the Constitution of India. But the law can be justified by the State by producing material which is not done by the State in this case. If a statute permits regularization of illegal development carried out before a cut off date, which is otherwise legal and it is illegal only on the ground that the same has been carried out without obtaining development permission, such a statute may not attract violation of Article 21. There is no violation of the town planning involved in such regularization. In the present case, if section 52A read is with the Compounded structure Rules, it permit regularization of illegal construction of multi storied buildings on public properties, on the lands reserved for public purposes, on the lands acquired for public purpose etc. We find for the reasons already set out that the provisions of section 52A and Rules 4, 5 and 7 Compounded structures Rules offend Articles 14 and 21 of the Constitution of India.

Conclusion:

The Flat buyers must ensure that upper floors will be regulated and finally and permanently sanctioned. Since this Judgment under consideration is interim, buyers should think before investing in upper floor flats.

Shruti Desai

6th June,2020

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