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Andhra Pradesh High Court
Flag Officer, Commanding-in-Chief, Eastern Naval Command - Appellant
Versus
Vijay Visakha Co-op.Milk Dairy, Visakhapatnam - Respondent
Decided On : 04-13-99
AIRCRAFT ACT - SECTION 9A - DEMOLITION OF OBSTACLES - PROCEDURE - NOC CANCELLATION - NATURAL JUSTICE: 1. The cancellation of a No Objection Certificate (NOC) issued under Section 9A of the Aircraft Act, 1934, for the construction of a building near an aerodrome, must be done in accordance with the statutory procedure prescribed under the Aircraft Rules, 1994. 2. The Director-General of Civil Aviation (DGCA) or the competent authority must serve a copy of the notification issued under Section 9A(1) of the Act, along with an order directing the owner to furnish details of the building or tree, to the owner or occupier of the building or tree sought to be demolished. 3. The owner must be given an opportunity to be heard before the DGCA passes a final order directing the demolition of the building or tree. 4. The unilateral cancellation of an NOC already issued cannot be countenanced and upheld without giving the petitioner an opportunity to present their case and prove that there was no misrepresentation of facts for obtaining NOC.
Fact of the Case:
The petitioner, a Cooperative Milk Dairy, obtained a NOC from the Flag Officer Commanding-in-Chief (FOC-in-C) for constructing a Milk Powder Plant near Visakhapatnam Aerodrome. The NOC was issued based on the petitioner's application and the documents submitted, which indicated that the building would be constructed at a distance of 3.5 Kms from the Aerodrome reference point and at a height of 43 meters above AMSL. However, the respondents alleged that the petitioner shifted the location of the plant and constructed the building at a distance of less than one nautical mile from the Runway 05 threshold, which posed a threat to aircraft operations. The FOC-in-C issued a letter dated 16-8-1996, cancelling the NOC and directing the petitioner to demolish the building.
Finding of the Court:
The court found that the impugned order dated 16-8-1996, issued by the FOC-in-C, was passed without complying with the statutory requirements under the Aircraft Rules, 1994. The petitioner was not given an opportunity to present their case before the order was passed. The court also held that the unilateral cancellation of the NOC was not justified as the petitioner was not given an opportunity to show that there was no misrepresentation of facts for obtaining the NOC.
Issues: 1. Whether the cancellation of the NOC was done in accordance with the statutory procedure prescribed under the Aircraft Rules, 1994? 2. Whether the petitioner was given an opportunity to be heard before the final order directing the demolition of the building was passed? 3. Whether the unilateral cancellation of the NOC was justified?
Ratio Decidendi: 1. The court held that the cancellation of the NOC was not done in accordance with the statutory procedure prescribed under the Aircraft Rules, 1994, as the petitioner was not served with a copy of the notification issued under Section 9A(1) of the Aircraft Act, 1934, along with an order directing them to furnish details of the building. 2. The court also held that the petitioner was not given an opportunity to be heard before the final order directing the demolition of the building was passed, which violated the principles of natural justice. 3. The court further held that the unilateral cancellation of the NOC was not justified as the petitioner was not given an opportunity to show that there was no misrepresentation of facts for obtaining the NOC.
Final Decision: The court set aside the impugned order dated 16-8-1996 and directed the competent authority under the Aircraft Act to follow the procedure prescribed while passing orders for demolition of any building as required under the relevant Rules and after affording an adequate opportunity to the petitioner for making their representation.
( 2 ) IT is this order which is challenged in Writ Appeal No. 964 of 1998. When this writ appeal came up for hearing, it was pointed out that a Commissioner was appointed by the learned single Judge who filed his report. Considering this, the writ petition itself was directed to be posted for learning. In view of the fact that the writ petition is itself heard finally, there is no need to pass any orders in the writ appeal.
( 3 ) THE facts leading to filing of the writ petition as stated in the affidavit of the petitioner may be briefly stated as follows : The petitioner is a Cooperative Milk Dairy, represented by its Chairman. The petitioner-Society is consisting of 460 Milk Producers Cooperative Societies in the four coastal districts. These Societies supply milk to the petitioner-Society. The petitioner-Society has been engaged in promoting the milk products by various modes.
( 4 ) THE petitioner-Organisation proposed to construct a Milk Powder Plant in its premises at Visakhapatnam. It submitted an application on 11-2-1993 to the second respondent (Aerodrome Officer) for obtaining permission for the said construction (presumably the said site is in the vicinity of Visakhapatnam Aerodrome ). In compliance of objections raised and by furnishing certain documents as pointed out by the Second respondent (Aerodrome Officer), the petitioner submitted an application on ] 1-7-1994 requesting the first respondent (Flag Officer Commanding-in-Chief) to issue no Objection Certificate (NOC) for constructing the milk plant with a height of 27. 48 metres, equivalent to 43. 00 metres AMSL. The first respondent on the basis of documents furnished and in compliance of the objections by the petitioner, issued NOC on 24-10-1995, which is valid for a period of two years.
( 5 ) AFTER receiving the NOC, the petitioner constructed the building and erected the machinery in question, by spending a sum of Rs. 5. 0 lakhs and when the building was nearing completion, respondents 2 and 3 asked the petitioner to stop the project. Later the petitioner, addressed a letter dated 27-7-1996 to the first respondent requesting him to consider the case and permit them to continue the work. The first respondent in his letter dated 16-8-1996 informed the petitioner that NOC issued by him on 24-10-1995 stands cancelled and further directed the petitioner to demolish the building at the earliest.
( 6 ) IT is stated that the petitioner constructed the building and plant in accordance with NOC, which permits the construction upto a height of 42. 2 Mts. AMSL. It is also stated that the distance of the building in question is more than three Kins, from Visakhapatnam Air Field. According to the averments in the petition, the petitioner constructed the building upto a height of 27. 40 mts. It is well within the norms fixed by the first respondent. The contention of the Naval authorities that the building is within the approach funnel of Air field and that it constitutes hazardous of obstacle to aeroplanes operating from the Airfield according to the petitioner, is incorrect. It is also denied by the petitioner that the contour map of Visakhapatnam is incorrect. Thus it is pleaded that the letter of the first respondent dated 16-8-1996 issued to the petitioner informing about the cancellation of NOC and directing it to de
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