Bombay High Court: In a petition filed by the Maharashtra chapter of the National Real Estate Development Council (NAREDCO) being aggrieved by the inaction of Respondent 2-State Environment Impact Assessment Authority (SEIAA) in repeatedly deferring the proposals of members of Petitioner 1-Association for environmental clearance on the ground of receipt of the email dated 23-09-2022 from Registrar of National Green Tribunal (‘the NGT') inviting the attention of SEIAA to the judgment and order dated 13-09-2022 passed by the NGT in Anil Tharthare v. State of Maharashtra, Appeal No. 22 of 2016 (‘NGT Order'), a division bench of S V Gangapurwala CJ. and Sandeep V Marne, J., directed that the judgment and order dated 13-09-2022 by National Green Tribunal shall not be an impediment for SIEAA to decide various proposals submitted by members of Association (Petitioner 1) for grant of environmental clearances on its own merits.
In the said judgment, NGT has held that recreational space must be provided at ground level which should not only be open to the sky but must also enable the plantation of trees. The NGT has further directed that if any project proponent fails to provide recreational space as per norms, the project may not be allowed to proceed.
Counsel for the petitioner submitted that the order of the NGT is not only inter-partes but applicable only to projects which are governed by Development Control Regulations, 1991 (‘DCR 1991') and is not applicable to the projects which are governed by the Development Control and Promotion Regulations 2034 (‘DCPR 2034') and Unified Development Control & Promotion Regulation (‘UDCPR'). Thus, as there is no clarity on the issue, SEIAA has been deferring the proposals rather than taking any final decision.
Placing reliance on the NGT Order (supra) and Municipal Corporation of Greater Mumbai v. Kohinoor CTNL Infrastructure Co. (Pvt) Ltd., (2014) 4 SCC 538, the Court noted that the provisions of DCR 1991 came to be superseded/replaced by the provisions of the DCPR 2034 for areas within Greater Mumbai and the some of the principles enunciated in Regulation 23 of DCR 1991 prima facie appear to have been deviated in some of the provisions in Regulation 27 of DCPR 2034.
The Court further noted that coming to the areas falling outside the limits of Municipal Corporation for Greater Mumbai, the provisions of Unified Development Control and Promotion Regulations also contain a provision in the form of Regulation 3.4.1 which apparently permits recreational open space being provided on the terrace of the podium in certain cases. Thus, both under DCPR 2034 as well as in UDCPR there appears to be a change in the provision relating to the provision of recreational open spaces.
The Court remarked that there appears to be a deviation in the provisions of the Development Control Regulations applicable at the time of delivery of the judgment by the Supreme Court in Kohinoor case (supra) and the one which are prevalent now. This aspect is required to be considered by the authorities concerned.
The Court concluded that from the perusal of the comparative chart of the provisions of DCR 1991 and DCPR 2034 as well as UDCPR, prima facie there appears to be a deviation in the exact location at which open recreational spaces must be provided. Thus, the Court directed SEIAA to take into consideration the provisions of DCPR 2034 or UDCPR as applicable, in order to determine the permissibility of the provision of open recreational spaces on the podium level in a particular project preferably within a period of eight weeks from the date of order.
[NAREDCO West Foundation v Union of India, 2023 SCC OnLine Bom 239, decided on 27-01-2023]
Advocates who appeared in this case:
Mr. Pravin Samdani, Senior Advocate, Mr. Karl Tamboly, Mr. Samit Shukla, Mr. Viraj Parikh, Ms. Saloni Shah, Ms. Shivani Khanwilkar, Mr. Abhishek Kothari i/b M/s. DSK Legal for the Petitioners.
Mr. Amogh Singh a/w Mr. Pranav Thackur for Respondent 1-UOI.
Mr. Milind V. More, Additional GP for Respondent 2 and 5-State.
Mr. Vijay Patil for Respondent 3-SRA.
Mrs. Rupali Adhate for Respondent 4-MCGM.
Ms. Seema Sarnaik i/b Ms. Sangeeta Salvi a/w Ms. Kavita Yadav for the Applicant/Intervenor in IAL 730 of 2023
*Arunima Bose, Editorial Assistant has reported this brief.
