17 March, 2020
The Coastal Regulation Zone Notification dated January 18, 2019 (“CRZ 2019”), requires the respective Coastal Zone Management Plans (“CZMPs”) framed under the Coastal Regulation Zone Notification dated January 6, 2011 (“CRZ 2011”) to be revised or updated as per CRZ 2019, before being submitted to the Ministry of Environment, Forests and Climate Change (“MOEFCC”). CRZ 2019 says that until and unless the CZMPs are so revised or updated, the provisions under CRZ 2011 will continue to be followed[1]. Accordingly, suggestions/ comments on the draft revised/ updated CZMPs of Mumbai city and Mumbai Suburban District under CRZ 2019 were invited for a period of 45 days commencing from January 16, 2020.[2]After district level hearings have been conducted[3] and based on the suggestions and objections received, the CZMPs will be revised and approval of the MOEFCC shall be obtained.[4] This has specific implications for construction projects in CRZ-II areas of Mumbai.
Historical Background and Present Legal Regime
The Coastal Regulation Zone Notification, dated February 19, 1991 (“CRZ 1991”), permitted construction of buildings on the landward side of proposed and existing roads/authorized structures, subject to ‘existing’ local town and country planning regulations as well as Floor Space Index (“FSI”)/ Floor Area Ratio (“FAR”) norms[5]. At the time, the applicable local town and country planning regulations were the Development Control Rules, 1967 (“DCR 1967”). The same were replaced by the Development Control Regulations for Greater Bombay, 1991 (“DCR 1991”) immediately after CRZ 1991 was notified. However, construction in CRZ-II areas of Mumbai continued to be governed by DCR 1967 since those were the regulations in force on the date of CRZ 1991.[6]
Even when CRZ 2011 was subsequently notified, it clarified that construction of buildings in CRZ-II areas falling within municipal limits of Mumbai would continue to be governed by local town and country planning regulations as existing on February 19, 1991 (i.e. date of CRZ 1991) through a specially included provision.[7] In view thereof, even after DCR 1991 was replaced by the Development Control and Promotion Regulations for Greater Mumbai, 2034 (“DCPR 2034”) in 2018, construction activities in CRZ-II areas of Mumbai continue to be governed by DCR 1967.
After CRZ 2019 was notified, the Bombay High Court held that construction in a particular plot in CRZ-II area of Mumbai should be permitted as per the new provisions.[8] It did so because it there was no dispute that the plot in question would continue to be in CRZ-II area of Mumbai even after the CZMPs are revised/ updated. However, the said judgment has been subsequently stayed by the Supreme Court.[9]
Accordingly, the provisions of CRZ 2019 are presently not applicable to construction projects in Mumbai.
The New Legal Regime and Transitory Provisions
CRZ 2019 provides that construction in CRZ-II areas shall be subject to applicable local town and country planning regulations and the norms of FSI/ FAR prevailing as on the date of CRZ 2019.[10] This is a significant departure from the position under CRZ 1991 and CRZ 2011 since the applicable town and country planning regulations are no longer frozen to those that were applicable on February 19, 1991. As a result, once the provisions of CRZ 2019 come into force (i.e. upon approval of the MOEFCC being obtained on the revised/ updated CZMPs), construction in the CRZ-II areas of Mumbai will be governed by DCPR 2034, instead of DCR 1967.
DCPR 2034 provides that the Commencement Certificate (“CC”) shall be issued or revalidated for cases where development has commenced as per the development permission/ Intimation of Disapproval (“IOD”) issued prior to publication of DCPR 2034, the CC will be revalidated till completion of development in accordance with the plans approved in respect of the said IOD including minor amendment thereof as per the then regulations.[11] In cases where IOD/ Intimation of Approval (“IOA”) has been issued or for ongoing works that are partially completed but were started with due permission before DCPR 2034 came into force, the regulation provides the developer/ owner may continue to complete the said works in accordance with conditions under which permission was granted but the period of the development permission shall not exceed a period of up to three years[12] or, at the option of the owner/ developer, the proposal can be converted as per DCPR 2034 in toto.[13]
DCPR 2034 empowers the Municipal Commissioner to formulate a policy for smooth implementation and removal of difficulties in transitional proposals.[14] The policy was initially formulated vide Transitional Policy Circular (T-1) No. Ch.E/DP/21521/Gen dated November 2, 2018[15] (“Circular T-1”) and subsequently clarified/ modified vide Transitional Policy Circular (T-2) No. Ch.E/DP/24394/Gen dated December 4, 2018[16] (“Circular T-2”) and Transitional Policy Circular (T-3) No. Ch.E/DP/33335/Gen dated February 27, 2019[17](“Circular T-3”) (collectively, “Transitional Policy”).
The Transitional Policy provides that where IOD has been revalidated as per the existing policy but CC has not been issued, it may be issued within the validity period of the said IOD but further revalidation of the IOD shall not be done. In case if CC has not issued within the validity period of the said IOD, the proposal will have to be considered as per DCPR 2034.[18] The Transitional Policy also provides that where draft plans are approved in-principle as per DCR 1991 and a demand note for payment of requisite approval fees has been issued to the project proponent on or before August 31, 2018, then formal approval of plans may be issued by recovering the approval fees with 18% interest from August 31, 2018. But this procedure is allowed only till March 31, 2019, after which the plans will have to be scrutinized afresh as per provisions of DCPR 2034.[19]
Concluding Observations
For construction projects in CRZ-II areas of Mumbai, the coming into force of CRZ-2019 on approval of revised/ updated CZMPs by the MOEFCC will also involve a change from applicability of DCR 1967 to DCPR 2034. The Municipal Commissioner can be expected to issue further modifications/ amendments to the Transitional Policy at that stage for CRZ-II areas, especially since some of the deadlines therein have lapsed even before DCPR 2034 has become applicable to CRZ-II areas of Mumbai. In the meantime, those developers who want to proceed as per DCR 1967 will have to race to ensure that CC is obtained within the specified time limits; whereas those who want to take the benefit of DCPR 2034 have to wait for the revised/ updated CZMPs to be approved by the MOEFCC.
For further information, please contact:
Adarsh Saxena, Partner, Cyril Amarchand Mangaldas
adarsh.saxena@cyrilshroff.com
[1] Paragraph 6(i) of CRZ 2019.
[2] Available at https://mumbaisuburban.gov.in/notice_category/announcements/ (Last accessed: March 6, 2020).
[3] Annexure-IV Paragraph 6(i) of CRZ 2019.
[4] Annexure-IV Paragraph 6(ii) of CRZ 2019.
[5] Paragraph 6(2) of CRZ 1991.
[6] Suresh Estates Pvt. Ltd. & Ors. v. Municipal Corporation of Greater Mumbai & Ors., (2007) 14 SCC 439 followed in TCI Industries & Anr. v. State of Maharashtra & Ors., 2014 (3) Bom CR 210 and Adarsh Cooperative Housing Society Ltd. & Ors. v. Union of India & Ors., 2016 SCC OnLine Bom 2583.
[7] Note to Paragraph 8(i) and Paragraph 8(V)(a)(iii)(a) of CRZ 2011.
[8] Akshay Sthapatya Pvt. Ltd. & Anr. v. Union of India & Ors., judgment dated September 20, 2019 in Writ Petition No. 1534 of 2019.
[9] Maharashtra Coastal Zone Management Authority v. Union of India & Ors., order dated November 29, 2019 in SLP (C) No. 27183 of 2019.
[10] Paragraph 5.2(iii) of CRZ 2019.
[11] Regulation 9(5) of DCPR 2034.
[12] See Section 48 of the Maharashtra Regional & Town Planning Act, 1966.
[13] Regulation 9(6)(a) of DCPR 2034.
[14] Note to Regulation 9(6) of DCPR 2034.
[15] Available at https://www.mcgm.gov.in/irj/portal/anonymous/qlbucircular (Last Accessed: March 6, 2020).
[16] Available at https://www.mcgm.gov.in/irj/portal/anonymous/qlbucircular (Last Accessed: March 6, 2020).
[17] Available at https://www.mcgm.gov.in/irj/portal/anonymous/qlbucircular (Last Accessed: March 6, 2020).
[18] Sl. No. 1 of Circular T-1.
[19] Sl. No. 3 of Circular T-1 read with Sl. No. 7 of Circular T-3.
