Decide On Real Estate Proposals For Environment Clearance In Accordance With DCPR-2034: Bombay High Court To SEIAA

The court of ACJ SV Gangapurwala and Sandeep Marne ordered that all project proposals should be considered in accordance with the new Development Control and Promotional Regulations 2034 and unified development regulations for Maharashtra within eight weeks.

The National Green Tribunal’s (NGT) order emphasising the need for only ground floor open spaces in a real estate project wouldn’t apply anymore as the 1991 Development Control Rules were replaced by the DPCR 2034 Rules. Under the new rules only a particular portion of open needed to be on the ground and the rest could be on a podium, the court said.

NARECO had approached the High Court following the SIEAA’s refusal to consider proposals pending before it in view of the NGT registrar’s e-mail communication based on a September 13, 2022 order in the case of Kalpataru Developers.

In the Kalpataru case, filed under the Development Control Regulations, 1991, the NGT ruled that the requirement for open spaces in the project must be on the basis of the SC’s decision in MCGM v. Kohinoor CTNL Infrastructure Company Private Limited. According to the judgement, open spaces must be specified in the layouts under Regulation 23 of Development Control Regulations 1991. On an interpretation of Regulation 23 of DCR 1991, the Supreme Court held that Open Spaces could not be provided on podium and had to be mandatorily on mother earth.

NAREDCO argued through Senior Advocate Pravin Samdani and Advocate Karl Tamboly and submitted that the provisions of DCR 1991 have been superseded / replaced by the provisions of Development Control and Promotional Regulations 2034 (“DCPR 2034”) for areas within Greater Mumbai, and the principles enunciated in Regulation 23 of DCR 1991 have been expressly deviated from in Regulation 27 of DCPR 2034.

Regulation 27 of DCPR 2034, permits for a portion of the total Open Spaces in the layout, to be situated on the Podium Level subject to conditions set out therein. In view thereof, it is not permissible to apply the provisions of DCR 1991 to projects being implemented under the provisions of DCPR 2034. Considering the aforesaid, the SEIAA has granted EC for various real estate projects under DCPR 2034, without applying the Kohinoor Judgment as the same is inapplicable, the petitioners argued.

Similarly, for areas apart from Greater Mumbai and for rest of State of Maharashtra the State of Maharashtra has notified Unified Development Control and Promotion Regulations for State of Maharashtra (“UDCPR”) whereby similar provision like Regulation 27 of DCPR 2034 exist, viz. Regulation 3.4 thereof.

The SEIAA’s decision to defer proposals for grant of EC under DCPR 2034 and UDCPR on the grounds that it required clarity on the application of the Kalpataru Order was arbitrary and an abdication of its duty to consider and sanction proposals for grant of EC, the petitioner’s claimed.

However, AGP Milind More continued to contest the petition on the ground that the SEIAA was bound by the orders of the NGT. Moreover, the order had relied on the Supreme Court Judgement and its interpretation of open space, he said.

The court thus passed the following order

1. 1.All proposals are to be considered by the SEIAA in accordance with DCPR 2034 and UDCPR
2. 2.The Kalpataru Order is not an impediment to consider pending applications/proposals
3. 3.All proposals are to be decided within a period of 8 (eight) weeks by the SEIAA.

Appearances: Sr. Advocate Mr. Pravin Samdani and Mr. Karl Tamboly. DSK Legal Team Mr. Samit Shukla (Partner); Ms. Shivani Khanwilkar (Senior Associate); Ms. Saloni Shah (Senior Associate) and Mr. Abhishek Kothari (Associate)

NAREDCO WEST FOUNDATION Vs UNION OF INDIA [WRIT PETITION (L) NO.35671 OF 2022]  

Citation: 2023 LiveLaw (Bom) 57

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