The Supreme Court refused to vacate the stay on the Bombay High Court order that permitted builders to provide recreation grounds (RG) on higher levels or the podiums of their towers.
A division bench of Justices Abhay Oka and Sanjay Karol recently extended the stay till October 10 while directing all the respondents to file their replies by then. The SC, on May 8, stayed the HC order of January which paved the way for developers to provide RG on higher levels.
“In the meanwhile, there will be stay of the directions contained in the impugned order passed by the High Court,” the apex court had said. The apex court is hearing a Special Leave Petition (SLP) filed by advocate Sagar Devre challenging the HC order contending that RG should always be on the ground level as mandated by the Supreme Court in an earlier judgment.
SEIAA refused to consider proposals
The HC bench headed by Acting Chief Justice SV Gangapurwala, on January 27, passed the order while hearing a petition by National Real Estate Development Council (NAREDCO), a self-regulatory real estate body, after State Environment Impact Assessment Authority (SEIAA) refused to consider several proposals pending before it in view of the National Green Tribunal (NGT) registrar’s e-mail communication based on a September 13, 2022, order in the case of Kalpataru Developers.
The NGT, on September 13 2023, said an RG should be open to the sky to enable the planting of trees, failing which a project may not be allowed to proceed.Devre’s lawyers, Ashutosh Ghade and Vivek Shukla, argued that the planning authorities should obey the apex court judgments and NGT order of September 13, 2022, which has specified that the RG area has to be provided on the ground floor and not on podium to all under construction and proposed project in the MMR Region.
Senior advocates urge court to vacate stay
Senior advocates Mukul Rohatgi and Praveen Samdani, appearing for respondents, urged the court to vacate the stay saying that several projects in Mumbai have come to a standstill. They filed an application seeking vacation of the stay. Shukla opposed the application saying that it was not maintainable and the apex court’s orders are not being followed in “letter and spirit”. Further, if the stay was lifted, thereby permitting providing RG on higher levels, then the illegal acts will become irreversible.The judges questioned NAREDCO’s counsels as to how they could challenge the NGT’s order considering it was not a party before the green tribunal.
Samdhani pointed out that the apex court’s judgement was passed in the context of the Development Control Regulations (DCR) 1991, and the new Development Control and Promotional Regulations (DCPR) can be framed subsequently. The High Court, in its January order, had noted that the NGT’s order wouldn’t apply anymore as the 1991 DCR were replaced by the DCPR 2034. Under the new rules, only a particular portion of the open space needed to be on the ground and the rest could be on a podium.
Solicitor General Tushar Mehta, appearing for the Union government, said that new rules may be framed regarding the open spaces and podium subsequently.
