Bombay High Court: Public authorities can't claim relaxation in aviation safety [15.1.2024]

Civil aviation safety norms cannot be relaxed even for a project by a public authority, the Bombay High Court held while dismissing the MHADA's petition against an order passed by the Union Ministry denying it permission to construct a 40-storey building near the airport here.

A division bench of Justices Gautam Patel and Kamal Khata on January 10 dismissed the petition filed by the Maharashtra Housing and Area Development Authority (MHADA) against a decision taken by the appellate authority of the Ministry of Civil Aviation in December 2021 setting a height restriction for a residential building proposed near the Chhatrapati Shivaji Maharaj International Airport.

The court, in its order, said the MHADA certainly cannot claim a legal, let alone constitutional, right to a taller building.

"It cannot contend that civil aviation safety standards should not apply to it. It cannot contend that merely because this is an MHADA project, it exceeding a mandated height poses no danger to civil aviation," the court said.

The court further said it was reluctant to accept the proposition, "one that paints quite a startling picture, of aircraft at the CSMIA weaving and swooping around an oversized MHADA tower as they take off or land".

As per the plea, the MHADA has proposed a building of a height of 115.54 meters (nearly 40 floors) for middle or low-income housing of 560 tenements.

While the maximum permissible height was 58.48 meters, the MHADA filed an appeal before the appellate authority, which then granted permission for 96.68 meters.

The bench, in its order, noted that there was no question of arbitrariness (in the order), and in fact, the appellate authority order was favourable to the MHADA.

"The MHADA is not being selectively targeted for the height restriction. If anything, it is the other way around," the court said.

It further stated that if any relaxation is given to the MHADA then the same relaxation would have to be given to every other developer, including a private party.

"No relaxation of civil aviation safety norms can be granted only because the project proponent is a public authority. Aviation safety has nothing to do with the identity of the developer," the court held.

While dismissing the plea, the bench said such a petition should never have been filed, especially by a responsible public authority.

"Why the MHADA needs a building of 40 floors is unexplained. But this proposed building falls within the four-kilometre radius of the airport run by the Mumbai International Airport Ltd (MIAL)," the court said.

The bench added that the Airport Authority of India has specified height restrictions that follow internationally mandated aviation safety standards and norms.

"There are no exemptions just because these are middle-income group housing schemes or because the applicant is MHADA," the court said.

The bench noted that the December 2021 order was passed by the Appellate Authority of the Ministry of Civil Aviation which presumably has at "the forefront of its mind and decision-making processes concerns of civil aviation as paramount".

15 Jan 2024