Provident Housing Limited A Public Limited Company v. State of Karnataka
2024-01-17
M.NAGAPRASANNA
body2024
DigiLaw.ai
ORDER M. Nagaprasanna, J. The petitioner is before this Court seeking a direction by issuance of a writ in the nature of mandamus directing the second respondent to consider the applications dated 31.01.2023, 08.02.2023, 23.02.2023 and 02.03.2023, for issuance of a 'No Objection Certificate' for Height Clearance to the petitioner in respect of the subject project. 2. Heard Sri Anandarama K., learned counsel for petitioner and Smt. Navya Shekhar, learned Additional Government Advocate representing the respondents. 3. The petitioner claims to be a public limited company incorporated under the Companies Act, 1956 and is in the business of real estate development and claims to be providing affordable houses to the public in general. The issue in the lis relates to a particular project of the petitioner in the name and style of 'Provident Neora', address of which is described in the body of the petition. The issue does not relate to any other claim of the petitioner, but only for issuance of 'No Objection Certificate' for Height Clearance by the second respondent. 4. The petitioner files an application before the second respondent seeking No Objection Certificate for completion of the building. An application is submitted on 31.01.2023. Four months after the submission of the application, it transpires that on 08.05.2023, certain clarifications are sought and the application is still pending before the second respondent. It is therefore, the petitioner is before this Court seeking a direction by issuance of a writ in the nature of mandamus. 5. Learned counsel for the petitioner by taking this Court through the documents appended to the petition would seek to demonstrate that the second respondent has kept the application pending for the last 13 months without any rhyme or reason. Due to such pendency of the application, the project cannot be completed and due to non-completion of the project, ten complaints are registered by several home buyers before the Real Estate Regulatory Authority (for short 'RERA'). If the No Objection Certificate for height clearance is issued, the project would be taken forward and the petitioner would come out of the problems before the RERA.
If the No Objection Certificate for height clearance is issued, the project would be taken forward and the petitioner would come out of the problems before the RERA. He would submit that in the year 2018, similarly situated apartment complex has been given such permission, which is of the same height and it is not for the first time, the second respondent is granting such No Objection Certificate, it is a deliberate delay on its part, is the submission. 6. Learned Additional Government Advocate would seek to contend that respondent No.2 - Flying Training School has called for clarifications on the applications. She would submit that without brooking any delay, the application would be considered and the orders would be passed in accordance with law. The submission is placed on record. 7. I have given my anxious consideration to the submissions made by the learned counsel for both the parties and have perused the material on record. 8. The afore-narrated facts are not in dispute and requires no reiteration. The only issue that falls for consideration is, whether the mandamus is to be issued to the second respondent to dispose of the application within a time frame. 9. The application is placed before respondent No.2 -Flying Training School, a Committee which is statutorily constituted in furtherance of the Rules i.e., the Ministry of Civil Aviation (Height Restrictions for Safeguarding of Aircraft Operation) Rules, 2015 (for short 'the Rules'), by the State Government. The Committee has to consider those applications, which come within the ambit of State owned and private aerodromes not licensed by the Directorate General of Civil Aviation. It is not in dispute that the Committee is constituted for the said purpose. The Rules 4, 5(3) and 13 of the Rules are germane and they read as follows: "... .... .... 4. Restrictions on constructions, erections, trees, etc. (1) No structure shall be constructed or erected, or any tree planted or grown on any land within a radius not exceeding twenty kilometers from the Aerodrome Reference Point of the civil and defence aerodromes, as specified in Schedule III to Schedule VII, without obtaining a No Objection Certificate for the height clearance, except in cases specified in sub- rule (2) of rule 7.
(2) No structure shall be constructed or erected, or any tree planted or grown on any land within the areas specified in Schedule I of the civil and defence aerodromes, as listed in Schedule III to Schedule VII, except for essential navigational aids and other installations required for aeronautical purposes. (3) No structure higher than the height specified in Schedule II, shall be constructed or erected and no tree. which is likely to grow or ordinarily grows higher than the height specified in the said Schedule shall be planted on any land within a radius of twenty kilometers from the Aerodrome Reference Point. 5. Issuance of No Objection Certificate:- (1) The No objection Certificate in respect of civil aerodromes shall be issued by the designated officer on behalf of the Central Government in respect of civil aerodromes. (2) The No Objection Certificate in respect of defence aerodromes shall be issued by the authorised officer in accordance with Schedule I and Schedule II. Subject to such other conditions as the said authorised officer may deem it. (3) In case of State owned and private aerodromes, licensed by the Directorate General of Civil Aviation, the No Objection Certificate for the protection of obstacle limitation surfaces (OLS) at such airports shall be issued by the designated officer and the procedure in cases of State owned and private aerodromes, not licensed by the Directorate General of Civil Aviation, shall be regulated in the manner as specified in rule 13. ?.. ?.. ?.. 13. Procedure to be followed in case of State owned and private airports not licensed by Directorate General of Civil Aviation.- (1) In case of State owned or private aerodromes not licensed by the Directorate General of Civil Aviation, the concerned State Government shall be responsible for the protection of obstacle limitation surfaces at such airports: Provided that the designated officer shall give guidance to the State Government on the protection of obstacle limitation surfaces, whenever such guidance is sought by the concerned State Government." (Emphasis supplied) Rule 4 deals with restrictions on constructions, erections, trees etc., No Objection being issued from the hands of the competent authority. Rule 5 deals with issuance of No Objection Certificate and Sub-rule 3 is what is necessary to be considered in the case at hand.
Rule 5 deals with issuance of No Objection Certificate and Sub-rule 3 is what is necessary to be considered in the case at hand. Sub-rule (3) of Rule 5 deals with the cases, where the State owned and private aerodromes, licensed by the Directorate General of Civil Aviation, No Objection Certificate for the protection of obstacle limitation surfaces (OLS) at such airports shall be issued by the designated officer and such procedures in such cases shall be followed as obtaining in Rule 13. Rule 13 depicts the procedure to be adopted by the competent authority of the State Government. 10. The State Government has now appointed a Committee and the Committee has to follow the said procedure. It is not in dispute that the applications/representations of the petitioner are submitted on 31.01.2023, 08.02.2023, 23.02.2023 and 02.03.2023, the Committee seeks site elevation and site coordinates certificate along with the undertaking from the petitioner. That has been complied with by the petitioner on 15.05.2023 and since then, the applications are lying with the second respondent. 11. It is on record that the petitioner has suffered several complaints before the RERA on the score that the project is not completed. The project is not completed according to the petitioner is on the score that the applications are pending at the hands of the second respondent. Therefore, it would be far from fairness for the second respondent to hold on to the application for the last 13 months and make the petitioner suffer. This cannot be becoming of the Committee. Though no time limit is prescribed, the application ought to have been disposed by reasonable time. The delay of 13 months in no stretch is a reasonable time. Therefore, the learned Additional Government Advocate though has placed on record certain documents seeking clarifications sought by the Committee along with the memo, a mandamus is to issue to the second respondent to dispose of the applications within four weeks from the date of receipt of a copy of the order, if not earlier. 12. With the aforesaid direction, the writ petition stands allowed. Ordered accordingly.