Aditya Pratap Secures Victory as Bombay High Court Upholds National Green Tribunal’s Decision Against Developers Violating Green Standards

News Articles Housing Society Law Date: 11 Mar 2024

Introduction:

In a significant legal triumph, Advocate Aditya Pratap, representing the interests of environmental activists Anil Tharthare and Santosh Daunkar, has achieved a pivotal victory in the Bombay High Court. The court has upheld the decision of the National Green Tribunal (NGT) in Pune, refusing relief to developers Keystone Realtors and Omkar Realtors. The case revolves around allegations of these developers violating green standards in their suburban high-rise projects. The NGT’s order, challenged by the developers, faced scrutiny in the High Court, where Aditya Pratap successfully defended the NGT’s jurisdiction.

This development marks a crucial step in the pursuit of environmental justice, with the court directing that the ongoing matter be heard by the NGT. Here, we delve into the legal intricacies and contentions surrounding the case, shedding light on the remarkable success achieved under Aditya Pratap’s representation. The Bombay High Court has refused to interfere with an order of the National Green Tribunal in Pune, which is hearing complaints against two city-based developers for violating green standards in their suburban high-rise projects.

Stand of High Court:

The HC granted no relief to the developers Keystone Realtors and Omkar Realtors and directed that the pending matter be heard by the NGT. The head of state said, “We are of the view that at this stage it is not necessary to interfere.” The NGT had rejected the developers’ preliminary plea on the tribunal’s jurisdiction in hearing the complaints on the grounds of delay and locus. The builders asked the HC to overturn the rejection because it meant the tribunal could now hear the case.

Activists Anil Tharthare and Santosh Daunkar approached the NGT separately in 2014 to stop construction in two different projects built by two different builders, Rustomjee and Omkar. They contested the environmental clearances granted to both projects, one in Bandra and one in Malad. The Rustomjee project, a 21-story tower in Bandra, was allegedly granted green clearance three years after construction began, in violation of the law.

The HC stated that it cannot be assumed that the final outcome will be favorable to the builders, but if it is, they can challenge it and even argue that the tribunal lacked jurisdiction to hear the case in the first place. As a result, the HC left the developers’ challenge open to be raised later if necessary.

Facts in brief:

In a matter before the National Green Tribunal, Special Bench an appeal was raised between Anil Tharthare (Appellant) and The Secretary, Environment Dept. State of Maharashtra & Ors. (Respondent). The issue involved in the present case is to establish the validity of Environmental Clearance (EC) granted by SEIAA, Maharashtra on 22.03.2016 for proposed residential building in Bandra, Mumbai. The EC also mentions an environmental management plan as well as budgetary allocations for it. A traffic management plan is also mentioned. General pre-construction and construction conditions are also specified.

Contentions of the parties:

Advocate Aditya Pratap represented the appellant and presented the main grounds for challenging the impugned Environmental Clearance granted by SEIAA. The appellant’s main arguments for challenging the impugned EC were that the Recreation Ground (RG) was not provided at ground level, but on a slab above the basement where plantation is not possible, in violation of the Hon’ble Supreme Court’s decision in Municipal Corporation of Greater Mumbai and Ors. vs. Kohinoor CTNL Infrastructure Company Private Limited. The fire safety standards were disregarded, and the setback for light and open spaces was not provided as required by the Development Control Regulations (DCR).

In a meeting of SEAC in 2014, recommendation was made to leave margin of 6m from boundary of the plot but this condition was not incorporated in the EC. The project is categorized as B-2 category project but as the area has exceeded 1.5 lakh sq. m., this project should be under the B-1 category project. It wrongly provides for two rehabilitation tenements instead of one. Advocate Aditya Pratap, who appeared for Daunkar, also claimed that the developer for Omkar Alta Monde at Malad had not taken necessary nods from the wildlife board despite the project coming up next to the Sanjay Gandhi National Park and yet had received the environment clearance in 2012.

The respondent contended that the judgement of SC in the Kohinoor case only deprecates practice of providing RG on podium as per DCR 38 (34) and thus not applicable as in the present case. Requirement of 6 meter open space is not binding as the Municipal Corporation has modified DCR 43 to the effect that open space of 6 meter will not be insisted if the building abuts road with width of 6 meters or more. As per relaxation in DCR 33(10), read with the Notification dated 6th December, 2008, provision for additional 6 meters open space is not binding. Out of 128 members, 104 members have already vacated their respective flats to enable the redevelopment. The appellant is a minority member who is creating hurdles in the redevelopment process.

Judgement passed:

The tribunal determined that the only issue for consideration was RG’s compliance with the law established by the Hon’ble Supreme Court in the Kohinoor case. In the aforementioned case, the Supreme Court addressed the issue of mandatory minimum RG to be provided in a housing project in Mumbai in order to give effect to the sustainable development principle of environmental law.

After hearing questions and answers as per the context of the case, the court simultaneously held that RG has to be provided on ground to enable plantation. The SEIAA, Maharashtra has to further ensure the availability of space as per the norms. The area does not only have to to be open to sky but must also enable plantation of trees. If the Project Proponent (PP) fails to provide RG as per norms, the project may not be allowed to be proceeded and no third-party rights may be allowed and created. A time of one month has been allotted to SEIAA, Maharashtra to verify facts on the grounds abovementioned and take its decision. All further appeals and MAs were disposed off. 

Aditya Pratap is a lawyer and founder of Aditya Pratap Law Offices. He practices in the realm of real estate, corporate, and criminal law. His website is Aditya Pratap.in and his media interviews can be accessed at http://www.youtube.com/@AdityaPratap/featured. Views expressed are personal.