DSK Legal advised and represented Naredco West Foundation before Bombay High Court

DSK Legal advised and represented Naredco West Foundation before Bombay High Court

DSK Legal advised and represented Naredco West Foundation ("NAREDCO") before the Bombay High Court. NAREDCO is the Maharashtra Chapter of the National Real Estate Development Council which is an autonomous self-regulatory body established in the year 1998 and is the apex national body for the real estate industry.

Brief Background:

The present Writ Petition was filed by NAREDCO challenging the inaction of State Environment Impact Assessment Authority ("SEIAA") to consider and grant of Environmental Clearance ("EC") in respect of real estate proposals and its decision to defer consideration thereof as recorded in the 252nd meeting held on September 28, 2022 and October 21, 2022 ("Impugned Inaction") under the pretext of impugned e-mail communication dated September 23, 2022, addressed by the Registrar, NGT, to SEIAA ("the Impugned Communication") and Order dated September 13, 2022 ("the Kalpataru Order") passed by the National Green Tribunal (NGT) in Appeal Nos. 22 of 2016 and 23 of 2016 ("the Appeals").

In the Kalpataru Order, the NGT ruled on a private lis regarding the legality of EC dated March 22, 2016, issued for a real estate project of M/s Kalpataru Properties which was undertaken under the aegis of Development Control Regulations, 1991 ("DCR 1991"). The NGT held that the requirement for Open Spaces in the project must be on the basis of the Supreme Court's judgment in the case of MCGM v. Kohinoor CTNL Infrastructure Company Private Limited (2014) 4 SCC 538 ("the Kohinoor Judgment") and directed the Registrar to forward a copy of the Kalpataru Order to SEIAA to ensure compliance.

The Kohinoor Judgment involved the adjudication of issues vis-à-vis the requirement for Open Spaces in layouts under Regulation 23 of Development Control Regulations 1991 ("DCR 1991"), particularly whether they must be situated on mother earth or could also be provided on a podium. 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.

The provisions of DCR 1991 have been superseded / replaced by the provisions of Development Control and Promotional Regulations 2034 ("DCPR 2034") for areas within Greater Mumbai, and the principles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. 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.

Order:

The matter was argued extensively and order was pronounced today. Vide order and judgment dated January 27, 2023, the Court has partly allowed the Writ Petition and, inter alia, it has been ordered that:

(i) All proposals are to be considered by the SEIAA in accordance with DCPR 2034 and UDCPR;

(ii) The Kalpataru Order is not an impediment to consider pending applications/proposals;

(iii) All proposals are to be decided within a period of 8 (eight) weeks by the SEIAA.

(iv) The question of Recreational Ground to be decided by SEIAA on its own merits.

This order has bought a huge relief as the Impugned Inaction by the SEIAA had brought several huge projects of the members of NAREDCO to a standstill and also affected further projects proposed by the members under DCPR 2034 or UDCPR.

The team comprised of Sr. Advocate Pravin Samdani (Counsel) and Karl Tamboly (Counsel).

The DSK Legal team comprised of Samit Shukla (Partner), Shivani Khanwilkar (Senior Associate), Saloni Shah (Senior Associate) and Abhishek Kothari (Associate).

Click to know more about DSK Legal