Shristi Infrastructure Development Corporation Limited & Ors v. Union of India & Ors

RAJIV SAHAI ENDLAW, J. APRIL 25, 2016 "bs"

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 25th April, 2016 + W.P.(C) 7652/2015 & CM No.14940/2015 (for stay) SHRISTI INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ORS ..... Petitioners Through: Mr. Chetan Sharma, Sr. Adv. with Ms. Divya Chaturvedi & Ms. Saksham Chauhan, Advs. Versus UNION OF INDIA & ORS ..... Respondents Through: Mr. Vishu Agarwal, Adv. for Ms. Anjana Gosain, Adv. for R-1&3. Mr. Sandeep Sethi, Sr. Adv. with Mr. Digvijay Rai, Adv. for R-2. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The petition, (i) impugns the order dated 24th June, 2015 of the respondent No.3 Appellate Committee, Ministry of Civil Aviation (Appellate Committee) and the order dated 29th July, 2015 of the respondent No.2 Airports Authority of India (AAI); (ii) impugns the "No Objection Certificate" (NOC) dated 3rd July, 2014 issued by the respondent No.2 AAI to the construction of the proposed building of the petitioner No.1 at Plot No.AA-II/CBD/2, AAI-II, New Town, Under Auction Area-II, Kolkata to the extent that it limits the height of Tower-2 of the petitioners" complex upto the height of 105.48 meters Above Mean Seal Level (AMSL); and, (iii) seeks a mandamus to the respondent No.2 AAI to grant NOC in terms of earlier NOC dated 26th July, 2006. 2. Though the petition came up first before this Court on 12th August, 2015 and the counsels for the respondent No.1 Union of India (UOI) and respondent No.2 AAI appeared on advance notice but was adjourned from time to time without issuance of notice thereof. Adjournment was sought on behalf of the senior counsel for the petitioners on 11th September, 2015 when also the matter was listed. On the opposition by the senior counsel for the respondent No.2 AAI as well as counsel for the respondent No.1 UOI and respondent No.3 Appellate Committee contending that the petitioners have increased the height of one of the towers on their hotel near the Airport at Kolkata and which was causing obstruction to the air traffic, the matter was adjourned to 14th September, 2015. On 14th September, 2015, the counsels were heard and order reserved. The counsel for the petitioners during the hearing handed over an additional affidavit along with documents and thereafter also on 18th September, 2015 and 30th September, 2015 handed over additional affidavits with advance copies to the counsels for the respondents. The said additional affidavits have also been considered by me. 3. The factual scenario is as under: (a) that the petitioner No.2 M/s Shristi Housing Development Ltd. is the wholly owned subsidiary of the petitioner No.1 Shristi Infrastructure Development Corporation Limited and the petitioner No.3 M/s Shristi Hotel Pvt. Ltd. is an associate company of the petitioner No.1; (b) that the petitioners, being possessed of land at Mouza Jatragachi, AA-II/CBD/2, Action Area-II, New Town, Rajarhat, Kolkata (West Bengal) situated at a distance of 7.06 Kms from Kolkata Airport and being desirous of constructing five star hotel, retail and commercial units and service apartments thereon, in or about the year 2006-2007 were in the process of obtaining various permissions / sanctions therefor; (c) that Section 9A of the Aircraft Act, 1934 empowers the Central Government, if of the opinion that it is necessary or expedient so to do for the safety of aircraft operations, to by notification in the official gazette, direct that no building or structure shall be constructed or erected on any land within such radius, not exceeding twenty kilometers from the aerodrome reference point, as may be specified in the notification and / or to direct that no building or structure higher than such height as may be specified in the notification shall be constructed or erected on such land; (d) that the land aforesaid of the petitioners being within the prohibited distance from Kolkata Airport, the petitioners applied for NOC from the respondent No.2 AAI also; (e) that the respondent No.2 AAI issued NOC dated 19t