Aviation safety norms: Developer vs. HAL dispute intensifies in court

Remote sensing authority has put the height of Raheja Vivarea at 892 metres, as opposed to the claim of 870 metres made by the builder. Pic: Nikita Malusare

Contrary to the claims made by M/s Chalet Hotels while getting No Objection Certificate from Hindustan Aeronautics Limited (HAL) for the residential apartment project  Raheja Vivarea in Bengaluru’s Koramangala area, Karnataka State Remote Sensing Application Centre(KSRSAC) has estimated the height of the construction spot of Raheja Vivarea to be 892 metres Above Mean Sea Level (AMSL).

The immediate implication of this is that Raheja Vivarea can not construct any of the blocks in the proposed complex beyond 13 floors, or 40 metres.

Earlier, a group of concerned residents had written to Defence Minister A K Antony, highlighting the difference in the elevation of the project site above sea level, as projected by the builder, M/s Chalet Hotels (870 metres) and as available in Survey of India -1970 maps and Google maps (892 metres). This data was used to get the height clearance for Raheja Vivarea from Hindustan Aeronautics Ltd airport, which is a defence establishment.

In response to this, residents believe that the Defence Minister must have directed HAL to take necessary steps, who in turn revoked the NOC given to Raheja Vivarea.

The builder of Raheja Vivarea, M/s Chalet Hotels, submitted a petition in high court, questioning the revoking of NOC by HAL. The court ordered a survey by Karnataka State Remote Sensing Application Centre to know the actual Above Mean Sea Level elevation of the project site.

The remote sensing centre submitted its report to High Court on September 3, 2013, as directed by the court in its the previous hearing, a copy of which is available with Citizen Matters.

Story from inside the High Court

In the first hearing on August 28, 2013, High Court judge H Billappa ordered a study on the same. The KSRSAC was directed to inspect the survey no. 21, 22, 42, 52, and 1B of Koramangala Industrial Layout and measure the elevation. Both the parties were asked to be present at the time of investigation, on September 3, 2013.

Accordingly a survey was done and photographs were taken for documentary proof. The High Court ordered that the results of the survey be submitted in a closed envelope on September 5, 2013.

In the next hearing, on September 6, 2013, the court opened the envelope and retained a copy for the court and the other two were given to the respective counsellors.

The hearing was adjourned to September 20, 2013 and the respondent was asked to maintain the order passed on first hearing on the maintenance of the status quo, till the next hearing.

Height found to be 892 metres

KSRSAC report says that they conducted a Differential Global Positioning System (DGPS) and FLY Level Survey to ascertain the elevation of the said property. For this, six different points or benchmarks  were chosen, which defined the boundaries of the project.

The property is spread in a ‘Z’ shape. These points define the outer boundaries of the entire plot. Point 1 and Point 6 showed almost the same height – 892.41 and 892.11 metre respectively. Point 2, 3, 4, and 5 showed some minor difference in elevation, ranging between 891.45 metres and 891.51 metres.

The report was authenticated by KSRSAC Director D K Prabhuraj. Overall height of the property was calculated on a benchmark position, which was called as “BM. NO. 1124”. This point is located at a latitude of 12 degrees 55 minutes 21.23 seconds North and Longitude  of 77 degrees 37 minutes  52.575 seconds East. The elevation at this particular location was calculated as 892.33 metres.

Aviation safety rules bar construction above 932 metres

A Gazette Notification dated January 14, 2010, issued under section 9 (A) of the Indian Aircraft Act 1934 prohibits construction of any infrastructure above 932 metres AMSL within four km radius of an airport, also known as Inner Horizontal Surface (IHS).

This calculation of AMSL also effectively limits the construction of properties in this area to 932 AMSL – that is approximately 40 metres from the ground. HAL Aerodrome is a defence airport. Therefore, 4 km radius from the reference point is considered while calculating the permissible AMSL.

Para 1.4 of the Gazette notification mentions the dimensions and permissible heights of inner horizontal surface. HAL’s runway’s length is 3,306 metres in length and 45 metres in width. It is elevated at a height of 875 metres. Hence the height of any infrastructure within the inner horizontal surface is restricted to 932 AMSL.

864/870 metres ground altitude projected from the beginning

M/s John Fowler India Pvt Ltd was the original owner of survey no. 21, 22, 42, 52, and 1 B of Koramangala, who procured the height clearance from AAI for the property and eventually sold it to Chalet Hotels. After this, Chalet Hotels too took a clearance by HAL after procuring a certified letter from Ambedkar Institute of Technology, stating that the AMSL was 870 metres.

Chalet Hotel rebuts charges
In response to a request from Citizen Matters, an email statement by M/s Chalet Hotel said: “The core issue that the existing construction unto full height is safe, has been confirmed by an Aeronautical Study by a reputed Expert. Chalet`s submission in Court is that since the full height construction which exists for over a year, does not ‘adversely affect aircraft operations’ (which is a pre-condition to be established for any action, as stated in the NOC given by HAL) there should be no cause for any apprehension or action.”

“However in the interest of clarity and safety, a 2nd study was contemplated. As HAL is now not agreeable for a 2nd independent study (by AAI, or by any other independent agency), and has unauthorisedly cancelled the NOC without survey and study and without giving any opportunity of hearing, Chalet has moved the court for independent survey and aeronautical study to ascertain ground and upper safety levels, and for quashing the cancellation letter.”

However, an anonymous letter dated December 30, 2010 written to General Manager, Airport Authority of India, a copy of which is available with Citizen Matters, alleged that M/s John Fowler India Pvt Ltd has indulged in gross irregularity in procuring NOC from AAI. 

The letter attached the NOC for height clearance issued for Kolte Patil Floriana and M/s John Fowler India Pvt Ltd‘s NOC, with the letter to AAI. Kolte Patil Floriana‘s NOC mentioned the elevation of their property as 892 metres, while M/s John Fowler India Pvt Ltd NOC projected an AMSL of 864 metres. The letter had argued that there cannot be a difference of 30 metres between two adjoining sites.

Kolte Patil Floriana is a residential complex beside the Raheja Vivarea. On the right of Raheja Vivarea stands Raheja’s eight-floor building, Raheja Residency and adjacent to it stands Kolte Patil Floriana. The letter claimed itself as written by the Kolte Patil Residents Association – a non-existant organisation, however the NOC documents attached look authentic.

Raheja Vivarea – construction status

HAL counsellor reported that the Raheja Vivarea had proposed the construction of  9  blocks of 62 metres height. According to CREDAI, approximately a floor is equal to three metres. Therefore 62 metres will be equal to approximately 20 to 21 floors.

These blocks were to be categorised alphabetically from A to I. Presently, five buildings with 17 floors have already been constructed.A and B blocks have completed 15 floors. Two buildings (G and H blocks)  have finished constructing 12 floors and the last building (I block) has 6 floors ready.

HAL’s counsellor’s calculation stated that Chalet Hotel must not proceed above 13th floor which is equal to 40 metres. It effectively means that the extra floors constructed will have to be demolished. This is at the core of the dispute.

Addendum

Updated: 14.28 pm, October 1,2013.

About Nikita Malusare 109 Articles
Nikita Malusare is a Staff Journalist at Citizen Matters.

7 Comments

  1. Sharing Own Thoughts But For Common Good: The reported yet another recent episode in re. (the infamous) Campa Cola, not the first but just one in a long winding series of its kind, not excluding this one herein,- particularly in the more than life-long history of owning and living in a ‘unit’ of a building – may have, as normally expected, left a commoner, with no vested interest, directly, in the ongoing battle of survival but with an unbiased and impartial outlook on life, is sure to have left bewildered; to be precise, painfully wondering, – IS THIS NOT A CLEAR INSTANCE OF missed wisdom underlined in the age old idiom – cutting off the nose to spite the face ! Be that as it should, what is all the more perplexing is this: Is this such a hopeless case as to be brushed aside, with no remedy or way-out left for the victims of the villainy ! If perceived intuitively and intelligently, it suggests, perhaps, a truly competent law professional , worth his salt, should be able to think of ways and means how best to strive and resolve the issues on hand, so also similar others bound to arise and recur in future, with at all no uncertainty. To add and give a hint: It seems worth exploring the scope for salvation in the hidden principles- of common (natural/equity) law underlying the not-unknown (or – unfamiliar concepts),- such as, “balance of convenience”, “adverse possession”, so on. Not but not least, in the famous grand old doctrine of “STARE DECISIS”. (Left unedited deliberately- for reasons easy to guess) < Now, Over To Law Experts All Around !

  2. @ MCShekar
    May be, you are right in a way; but not in entiret6y, if looked into or through, and from all possible angles. So far as ‘buyers’ as a community is concerned, by and large the reality is that they are mostly either bona fide ignorant, – or prefer to so remain forever, for own individual reasons or personal idiosyncrasies, – of the intricacies of the law/its involved facets, That happens especially because of the law(s) or rules and regulations being replete with complicity ; being so , even to professionals claiming to have knowledge and experience- if not competency of such a degree as normally expected.
    All such or like defence or excuses , in the ultimate analysis, cannot be expected or rightly regarded to cut the ice or hold water; for that matter, can in no way absolve the other party to transaction – that is, the vendor of flats or apartments, from his lawful obligations , the attached contractual responsibilities to his client as well.
    The following extract from one of the posts in public domain, several years ago, reproduced for ready reference, may be noted to focus on certain of these:
    Q
    The characteristics of the property rights / interests attached by the law to an Apartment (also, Flat) are, under the scheme of the special enactment, peculiar and entirely different, in comparison with those of any independent and all exclusive house property. In view thereof, it is absolutely necessary, rather obligatory on the part of every Purchaser, not only from his own individual standpoint, but also from that of the other co-purchasers / co -owners, – to take utmost care / and caution, and exercise due diligence; also be guided by proper legal advice, if that be called for / or to the extent that is considered prudent and necessary, – in the matter of purchase of an Apartment; essentially, before going through the most crucial process of having the execution and registration of the Deed of Conveyance done / completed.
    The under mentioned aspects and their implications require to be specially noted and duly taken care by everyone of the co-purchasers, who eventually are going to become co-owners as envisaged by the law:
    (1) In the nature of things, the execution and registration of the Deed of Conveyance might not take place in the case of all the co-purchasers at one time, but would be gone through at different successive points in time.
    (2) One cannot expect an ideally proper or fullest co-ordination and co-operation among the co-purchasers, that too among all of them, with no exception or exclusion whatsoever. In particular, in the initial stages – that is, not until after all of them are perforce obliged to congregate and act united in respect of all such matters , which entail the common rights and interests of all the co-purchasers / co-owners.
    (3) Should any one or more of the requirements / formalities under the law not be taken care by any such co-purchaser in whose case the execution and registration of the Deed of Conveyance happens to take place first, for any reason whatsoever, – that is, anything done or omitted to be done knowingly or otherwise, by that co-purchaser, then – that is bound to have unpleasant / unlawful consequences to, or adversely impact the lawful rights and interests of the other co-purchasers, not only individually – that is, of each one of them, but also collectively – that is, of them all.
    Nonetheless, as per the law, its mandates regarding matters requiring strict compliance by the Seller are unmistakably loud and unambiguously clear. The reason / rationale behind is this: It is he, who constructs and sells the Apartments to different persons, – who, to begin with, are mutually strangers. He makes the sales under separate and independent transactions, as concluded by him with each one of them, and at different points of time. Hence, the responsibility to take care of all the legal requirements / formalities entirely rests with him, until such time the purchasers join in the formation and registration of the legal entity namely,– THE OWNERS’ ASSOCIATION, and become its ‘members’; thereby, to effectively become ‘co-owners’ within its special meaning under, and as envisaged by, the law.
    UQ
    For an elaboration of the foregoing special aspects, suggest to look up the published write-ups / comments ,on the law on apartments (/ Flats) , et al, on this website, and / or elsewhere
    May be expected to sharing some further thoughts through a separate post, particularly keeping n mind those like-minded members of the legal fraternity, who are favourably disposed to study and consider in-depth and deliberate, either independently, or as a group, eventually for the sake of and serving the intended purpose of “common good”.

  3. Yes sir, You are right. But none of the buyers care nor are their experts, as they lack knowledge about the concerned Acts.
    ecopackindia

  4. The “NOC” made a mention of in the last Post is a very vital document; attention is invited to inter alia a related detailed write-up lately published @ http://businesstoday.intoday.in/story/buy-property-house-deal-with-real-estate-developers-tricks/1/196114.html.
    According to authentic information, the local authority e.g. BBMP in Bangalore had long since stopped issuing a ‘clean’ completion certificate, but instead being issued is a ;conditional’ or qualified one. As such, even if buyer is given an impression that builder has procured one, it is for the buyer to insist for and obtain a cc and go through or have it vetted legally, with a fine toothed comb, for ascertaining the true state of affairs – that is, to know fully what is in store.

  5. Most of the Apartments complexes have deviations, violations and irregularities but compromising with the NATION`S SECURITY is unpardonable. Another builder has endangered the security of the nation`s topmost research lab and has excuses !!!! ALL THESE SINNERS will live in sin forever.
    Most surprising issue here is a statement by one of the buyers declaring that he has already bought it based on the NOC and hence, it must not be demolished, though it is illegal !
    Even the buyers have responsibilities towards the society, environment and the security of the nation, but they are least bothered and care to hoots !!!

    It is a SINNERS PARADISE, all the way !!
    Ecopackindia

  6. Sporadic >
    Is not the narrated story prima facie obnoxious and patently ridiculous , offending the very basic human faculty, however rare-to-come-by in today’s times, that be !
    “Better late than never” , one thought, may have to be summoned, rightly so, only as a n exception to the rule; not to be taken as a rule, to be followed for ever, hence to be eschewed.
    The facts that NOC was originally issued but came to be revoked only in the aftermath/ as a result of public agitation , it seems, speak volumes on the underlying irregularities; which , as expected, might come to light once the pending court proceedings reach a finality.
    Until then, one and all concerned have no option except to ‘live in sin’ ; as has been happening all the time in any number of like bizarre instances e.g, the widely known “Adarsh” episode, in “aamchi”‘ Mumbai.

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