Bombay High Court Directs Airforce To Reconsider NOC Revalidation Request For Residential Project Near IAF Airfield And NDA Aerodrome In Pune

A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla refuted the IAF authorities’ objection that the NOC was initially issued to another builder and, in absence of any provision of transfer in the NOC, the new builder needed to apply for a fresh NOC.

“The said NOC has been issued in respect of construction on the said property. Therefore, the said NOC is granted in respect of the said property. Since the Petitioner is now the owner of the said property and entitled to carry on construction thereon, it would be only the Petitioner, and not M/s. D S Kulkarni Developers Limited, who have already sold the said property to the Petitioner, who can make an application for revalidation of the said NOC”, the court held.

The court further held that the restrictions on constructions near the NDA Aerodrome introduced in the Ministry of Civil Aviation (Height Restrictions for Safeguarding of Aircraft Operations) Rules, 2015 would not be enforceable on constructions approved under a 2010 IAF Notification whose construction began within 5 years of the issuance of the NOC.

“in a case where construction has started during the initial validity period of five years but has not been completed during the period of eight years, the concerned person is entitled to apply for revalidation of the NOC granted to him, and, while considering revalidation, the height of the building or constructions shall not be reassessed in accordance with the provisions of 2015 Rules. This necessarily means that the restrictions imposed by the 2015 Rules, for the first time, in respect of the NDA Aerodrome, would not be applicable and cannot be considered while considering the granting of revalidation”, the court observed.

Facts:

Nitin Dwarkadas Nyati, the sole proprietor of Nyati Housing, challenged the refusal of revalidation of a NOC issued by the Indian Air Force (IAF). The NOC, issued in 2015, permitted construction of a 99.128 meters height building near the IAF Airfield in Pune with certain conditions outlined in a IAF notification dated January 14, 2010.

M/s. DS Kulkarni Developers Limited initially obtained the NOC to construct Phase VIII of its project DSK Vishwa, and Nyati acquired the property from it in 2017. Under the agreement, Nyati had to construct and hand over 46 flats in certain buildings.

The property was attached due to legal proceedings against DSK Developers. However, it was released when Nyati, in an undertaking to the Sessions court, agreed to hand over the constructed project to the state government within 3 years of commencement of construction.

In 2019, the Nyati applied to the Airforce authorities to revalidate the NOC. However, the authorities refused to revalidate the NOC, citing the absence of provisions for revalidation and concerns about safety around the NDA Airfield. Thus, he filed the present petition.

Rule 16 of the 2015 Rules, provides that the regulations outlined in the 2015 Rules do not impinge on the height clearances that were assessed and issued under the 2010 Notification. It further states that if the construction is finalized within the validity period of eight years for buildings and twelve years for other structures, and the completion certificate is obtained from the relevant authorities, then the 2015 Rules do not apply, and there is no necessity for seeking revalidation of NOC.

On the other hand, the proviso to Rule 16 states that if the construction work did not commence during the initial validity period of five years for buildings or seven years for other structures, the height of the building or structures must be re-evaluated according to the specifications laid out in the 2015 Rules. This implies that the concerned party would have to apply for a fresh NOC and the construction would be governed by the 2015 Rules.

Arguments:

Senior Advocate Milind Sathe for the petitioner argued that since construction work had commenced within the stipulated five years as per Rule 16, the petitioner was entitled to seek revalidation of the existing NOC.

Advocate Savita Ganoo for the Union of India argued that the petitioner was required to obtain a separate NOC concerning the NDA Aerodrome, Pune, as it was included in the list of Defence Aerodrome in the 2015 Rules. Rule 4 bans construction within 4 Kms of the aerodrome reference point while the proposed construction is 3.5 Kms from the NDA Aerodrome, she said.

Court’s Ruling:

The court noted that if the construction of a building initiated within five years but could not be completed within eight, the builder would be entitled to apply for the revalidation of the NOC issued under the 2010 Notification. The restrictions imposed by the 2015 Rules would not be applicable in such instances, the court said. Thus, the newly introduced constraints concerning the NDA Aerodrome, which were not encompassed in the 2010 Notification, would not be enforceable in cases where revalidation is sought, the court concluded.

The court refuted the argument that safety concerns required the petitioner to obtain an NOC concerning the NDA Aerodrome, highlighting that the 2010 Notification and the 2015 Rules, which entitles the petition to apply from revalidation, already account for safety considerations.

Thus, court set aside the impugned letters refusing revalidation of the NOC and directed the authorities to evaluate the petitioner's application for revalidation in line with the 2010 Notification.

Case no. – Writ Petition No. 8803 of 2021

Case Title – Nitin Dwarkadas Nyati v. Union of India and Ors.