This article is written by Navya Tiwari, a law student at ICFAI University, Dehradun, with a keen interest in Corporate Governance and Alternative Dispute Resolution (ADR).
The Silent Battle Above Our Cities
As the wave of urbanization continues to grow, India’s metropolitan landscape is changing significantly. Tall residential buildings, commercial centres, and even mixed-use facilities now shape the dreams of a prospering economy. However, hiding behind these visions of prosperity is another less known yet vital struggle preserving the skies clear from potential obstacles for airplanes and thus securing the airspace of the country. Building of a facility does not only imply obtaining the zoning approval; rather, it involves national security and aviation safety issues, putting the constructors at odds with the aviation regulations introduced by Airports Authority of India (AAI).
The article here provides an insight into the area of aviation clearance through analysis of the regulations, legal consequences of violating them, and legal cases in the field with emphasis on the case of Jivanam Developers vs AAI.
The Regulatory Framework: Guarding the Skies
The legal provisions concerning the construction of high-rise buildings close to Indian airports are clear and concise. The backbone of such legislation is Section 9A of the Aircraft Act, 1934, granting authority to the Central Government to restrict the construction of buildings and structures, as well as tree plantings, which can hinder aircraft movement. In order to specify such restrictions, the Ministry of Civil Aviation (MoCA) introduced the GSR 751(E) (Height Restrictions for Safeguarding of Aircraft Operations) Rules in 2015, creating a safeguarded airspace of up to 20 km around an airport.
The process of obtaining clearance is rather detailed. The developer who wants to construct high-rises needs to get a ‘No Objection Certificate’ (NOC) concerning height from the AAI. The previous manual method of requesting clearance was replaced by an online system called NOC Application System (NOCAS) available on the AAI website. After receiving an application, an AAI committee usually including a civil engineer, ATC employee, etc. – visits the site in person to verify the coordinates and elevations provided by the applicant.
This is not an arbitrary value. It depends largely on whether the If the construction area is on the flight path of the aircraft, then for every 50 m from the boundary of the airport, 1 m of height is allowed. In the case of the position on the side of the runway, the ratio becomes 1:15. All of this is highly accurate, as all coordinates are defined according to the WGS 84 (World Geodetic System 1984) standard. Modern advances have improved this situation. The development of the Colour-Coded Zoning Map (CCZM) permits developers to determine their permissible top elevation (PTE) before applying at all.
The Battle Over Coordinates and Radar
With urbanization taking over the space around airports, the tolerance for any possible miscalculations in regard to height clearances have become nil. This often leads to legal clashes.
One such case which illustrates the escalating conflict is that of Shrishti Infrastructure Development Corporation vs. Airport Authority of India. In this case, the developer sought a challenge to an AAI decision to reject the height clearance application in respect of a particular building in Kolkata. The developer felt that the process used by AAI for assessing height clearance was “crude” and devoid of computer modelling. The main claim here was that the permissible height should be determined on the basis of “multi-radar criteria” as the Kolkata Airport had more than one radar system which could take care of the obstruction problems.
However, the Delhi High Court in its verdict dated October 15, 2024 dismissed the challenge on account of a grave procedural infraction. The Court held that the order of the AAI to be cryptic, devoid of any reason, and against the principles of natural justice. This case highlights the current trend in judicial proceedings wherein the courts have become very reluctant in accepting the decision-making of any bureaucratic process which is not justified even if the authority making the decision is technically competent.
In the case involving HAL Airport, Bengaluru, the issue of importance of data integrity has been highlighted. The NOC for height clearance was issued based on the undertaking of the developer that the “site elevation” is 870 meters AMSL. However, on resurveying the place, it turned out that the true elevation is 892 meters AMSL and hence, the building exceeds the clearance limit by 22.41 meters. The NOC has been cancelled and investigation has taken place regarding the responsibilities of both the builder and the authority certifying the data. In such a case, it is imperative that the NOC is issued on the basis of the data of the applicant and in case of falsity of the data, it becomes invalid.
The Jivanam Developers vs AAI Case: A Turning Point?
Whereas the case of Shrishti Infrastructure reveals problems in procedure, the key case law which is often quoted in terms of arbitrariness in height clearance procedures is the supposed precedent in Jivanam Developers vs. AAI.
The factual background of the Jivanam case, as far as publicly available records indicate, seems to involve a major controversy over Koramangala, Bengaluru. Jivanam Developers had obtained a clearance of height for construction to be carried out till 932 meters AMSL. But they constructed their building above that limit, going up to 954 meters AMSL. The interesting part about this case is the defence strategy. The respondents maintained that the NOC is a conditional clearance under Section 9A of the Aircraft Act. In addition, the respondents used the “caveat emptor” principle against the developer as they were well aware of the norms. One of the most important leaps of logic from the respondent side in Indian aviation law was: “Cost benefit analysis cannot by itself address fully the concerns raised in such cases. There are circumstances in which more stringent safety measures should be retained, even though they may not be directly cost-beneficial.” This assertion in relation to the addendum of the aeronautical survey asserts that the issue of safety in aviation is not negotiable and can never be traded off for commercial gains.
In the case under discussion, it would seem that the basis of the whole issue revolved around the correlation between the information provided by the applicant and the analysis carried out by the AAI. This resulted in an instance whereby the developer got an NOC on the ground that the height of the structure was 870 meters AMSL whereas in reality it was 892 meters AMSL.
A Warning to Developers
All of the above-mentioned guidelines and decisions serve the purpose of clearly conveying a message to the real estate industry.
- Height NOC is Compulsory: All construction work, be it planting trees, in the protected area needs a clearance.
- The Appeal Process: In case a developer is not satisfied with the ruling of the AAI, there is an appeal committee set up by the Ministry of Civil Aviation. In many cases of such meetings, it has been seen that appeals are thoroughly reviewed and the committee often suggests heights different from both the AAI grant and the developer’s request.
- Strict Penalties: Non-compliance invites punishment according to the Aircraft (Demolition of Obstructions caused by Buildings and Trees) Rules, 2023. Demolition and imposition of heavy fines are powers in the hands of authorities.
Balancing Ambition and Safety
In the coming years, the future of India’s urban cities depends on their vertical expansion. Nevertheless, such an expansion cannot be achieved at the expense of aviation security. It is crucial to highlight that the regulatory framework concerning height clearance is aimed at preventing potential problems rather than inhibiting the development. Thus, the examples of Shrishti infrastructure and Jivanam Developers prove that the AAI has a considerable right to limit the construction works, yet, it has to apply this right reasonably and transparently.
There are several important lessons from this case study for the developers.
First of all, one should take into account that when striving for reaching the sky, a developer has to make sure that he or she has strong, verifiable grounds for it. Moreover, such aspirations have to be compatible with the invisible highways of the sky. Therefore, the law helps to overcome the difficulties in this complicated environment, yet it allows no place for reckless pilots and developers.
