Earlier last week, the Bombay High Court directed the State Environment Impact Assessment Authority (SEIAA) clear out the back log of pending approvals for real estate projects that have been stuck for years due to the deferral of environmental clearance requests by the State authority. The High Court has given the body eight weeks to do the needful, providing much relief to builders and homeowners of these deferred projects. The High Court has directed SEIAA to consider and decide each proposal by applying the provisions of DCPR 2034 or UDCPR and to make a decision on the merits of the proposals.
In a relief to many, the Bombay High Court recently passed a ruling that would allow multiple real estate projects that had been stuck for a long time due to the State authority's deferral of environmental clearance (EC) requests, to restart. The State Environment Impact Assessment Authority (SEIAA) has been citing a September 2022 order by the National Green Tribunal (NGT) as the reason for the deferral. However, the Bombay High Court has now directed the SEIAA to decide on such requests expeditiously and within a period of eight weeks, based on merit.
The High Court bench, consisting of acting Chief Justice S V Gangapurwala and Justice Sandeep Mare, held that the SEIAA "could not have deferred decisions on proposals for the grant of EC merely on the basis of the judgment and order dated 13 September 2022 of the National Green Tribunal (NGT)" which pertained to one particular case and "would not govern each and every proposal submitted before the SEIAA under DCPR 2034".
The High Court has directed the SEIAA to consider and decide each EC proposal by applying the provisions of DCPR 2034 or UDCPR, as the case may be, and to make a decision on the merits of the proposals. The High Court's 18-page judgment, authored by Justice Marne, concluded by allowing the NAREDCO petition in part, stating that "considering the fact that the proposals submitted by Petitioner No. 1 Association are pending for a long time, the SEIAA shall proceed to take a final decision thereon as expeditiously as possible, preferably within a period of eight weeks from today".
The High Court judgment was in response to a petition filed last year by the NAREDCO West Foundation, a self-regulatory body for the real estate sector, challenging the "inaction" of state authorities and the decision by the SEIAA to defer various pending pleas. The NGT order, which the SEIAA had cited, was in relation to a case concerning Kalpataru Builders and required recreational grounds to be provided at the ground level, with provisions for planting trees.
Senior Counsel Pravin Samdani, representing the NAREDCO West Foundation, argued that the NGT order was only applicable to projects governed by Development Control Regulations of 1991 and not to projects governed by the Development Control and Promotion Regulations 2034 (DCPR) and Unified Development Control & Promotion Regulation (UDCPR). He argued that the SEIAA had been deferring all proposals instead of taking a final decision.
The state's lawyer, Milind More, argued that the SEIAA "felt bound by the directions of the NGT which appears to be in rem". However, Samdani countered that the DCR 1991 made it mandatory to provide recreational space at the ground level, while the DCPR 2034 and UDCPR specifically permit the provision of recreational open spaces on podium areas as well.
An intervention plea filed by Anil Tharthare opposed the NAREDCO petition, but the High Court ruled that the objections raised were "totally misplaced". Advocate Amogh Singh, representing the Centre, has argued against the applicability of the petition, citing alternate remedies in law against the NGT order. The High Court stated that it had not gone into the merits of the issue as to whether environmental clearance for a particular project was grantable or not.
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