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Uncertainties Prevails In The Construction Of Recreational Ground On Podium Level

In its recent ruling, the Supreme Court ("SC") has ordered a stay on the Bombay High Court ("BHC") order dated 27th January 2023 which dealt with the issue of construction of Recreational Grounds ("RG") thereby providing relief to developers whose projects were facing delays due to the National Green Tribunal's ("NGT") order dated 13th September 2023, wherein it was held that developers could not designate any podium in a building as an RG, emphasizing that a RG should be open the sky to facilitate tree planting.

NGT Order:

The subject matter of the entire issue is the appeal preferred before the NGT questioning the validity of the Environmental Clearance ("EC") granted by State Environment Impact Assessment Authority ("SEIAA") for a proposed redevelopment project by M/s. Kalpataru Properties Private Limited.
The principle question for consideration before the NGT was whether RC provided on podium of a building is in violation of the Development Control Regulation 1991 ("DCR 1991"). Alongside, the other issues such as the effectiveness of the mechanism for fire hazards, violation of regulations governing open spaces, etc have been put for adjudication before the NGT.
The NGT placed heavy reliance on the SC's Judgment in the case of Municipal Corporation of Greater Mumbai v. Kohinoor CTNL Infrastructure Company Private Limited[1], wherein the SC have carefully interpreted the provisions of Regulation 23 of DCR 1991 and Regulation 38(34) of DCR 1991 which governs the provisions pertaining to the construction of RG.
As per Regulation 23 of DCR 1991, it is mandatory to construct the RG in open spaces permanently open to sky and at one place i.e., on ground level. On the other hand, clause (iii) of Regulation 38(34) of DCR 1991 states that the podiums shall be used for parking of vehicles, and clause (iv) of Regulation 38(34) of DCR 1991 provides that the recreational space prescribed in Regulation 23 of DCR 1991 may be provided either at ground level or on open to sky podium. Thus, the provisions under Regulation 38(34) is meant to be discretionary in nature and the same cannot be said to supersede the provisions of Regulation 23 of DCR 1991. If any recreational space has to be constructed on the podium it will be in addition to the provision of Regulation 23 of DCR 1991 and not supplementary to it. The extract of the judgment discussing this issue is reproduced below:
1. 23. It is very relevant to note that although Mr. F.S. Nariman, learned Senior Counsel appeared for the respondent Kohinoor, stated that after the order was passed by this Court on 25-7-20137, he was appearing to assist the Court on the four issues framed in Part II of that order as amicus curiae. He pointed out that sub-clause (iv) of DCR 38(34) lays down that the recreational space "may be provided" either at the ground level or on open to sky podium. As against that the recreational/amenity open space contemplated under DCR 23 was mandatory. Clause (1)(a) of DC 23 speaks of "vacant land and the open spaces as far as possible "shall be provided" at one place. He, therefore, submitted that whereas the provision under DCR 23 is mandatory, the one under DCR 38(34) is discretionary, and it cannot prevail over DCR 23.
2. 32. Therefore, after reflecting upon the legal position, we are clearly of the opinion that having 15%, 20% or 25% of the area (depending upon the size of the layout) as the recreational/amenity area at the ground level is a minimum requirement, and it will have to be read as such. We, therefore, answer Issue (i) by holding that it is not permissible to reduce the minimum recreational area provided under DCR 23 by relying upon DCR 38(34). However, if the developers wish to provide recreational area on the podium, over and above the minimum area mandated by DCR 23 at the ground level, they can certainly provide such additional recreational area.
Thus the NGT in its judgment has held that RG must be provided at ground level which should not only be open to the sky but must also enable the plantation of trees. The NGT has further directed that if any project proponent fails to provide RG as per norms and regulations laid down in the DCR 1991, the project may not be allowed to proceed.

BHC Order:
1. In a petition filed by National Real Estate Development Council ("NAREDCO") being aggrieved by the inaction on the part of SEIAA by repeatedly deferring proposals of members of NAREDCO for EC on the ground of receipt of the email dated 23rd September 2022 from the Registrar of NGT inviting the attention of SEIAA to the judgment and order dated 13th September 2022 passed by the NGT in Anil Tharthare v. State of Maharashtra ("NGT Order"). It was argued that the said NGT Order cannot be construed to mean a blanket prohibition to consider the proposals of the projects governed by DCPR 2034 or UDCPR.
  
  The main issue for consideration before the BHC was whether the said NGT Order applies to projects governed by Development Control and Promotion Regulations 2034 ("DCPR 2034") and Unified Development Control & Promotion Regulations ("UDCPR").
  
  As stated above, NGT in its order has held that recreational space must be provided at ground level which should not only be open to the sky but must also enable the plantation of trees. Since, there is no clarity on whether the said NGT order shall be applicable to all the project irrespective of whether is governed by DCR 1991 or DCPR 2034 or UDCPR, SEIAA has been deferring the proposals rather than taking any final decision. This has led to a widespread delay in the construction of various real estate projects which in turn is leading to increased construction costs ultimately to be borne by the developers.
  
  On careful reliance on the said NGT Order and the judgment in the case of Municipal Corporation of Greater Mumbai v. Kohinoor CTNL Infrastructure Company Private Limited[2], the BHC observed that the provisions of DCR 1991 are superseded by the provisions of DCPR 2034. Regulation 23 of DCR 1991 and Regulation 27 of DCPR 2034 both governs the construction of RG in a project, but these regulation vary from each other in some aspects. Note 2 appended of Regulation 27 of DCPR 2034 specifically is reproduced below:
  1. The minimum 60% of the required LOS shall be provided exclusively on the ground and at least 50% of this shall be provided on mother earth to facilitate the percolation of water and balance 40% of required LOS may be provided on podium area extending beyond the building line. The LOS on mother earth shall not be paved and all LOS shall be accessible to all the occupants of the plot/layout. Rest of the compound pavement other than stated above shall be paved with perforated paving having adequate strength, in order to facilitate percolation of rainwater into the ground.
    
    Sub clause 3 of Regulation 3.4.1 of UDCPR permits construction of recreational space on terrace of podium in certain cases. The said sub clause 3 of Regulation 3.4.1 of UDCPR is reproduced below:
    1. Not more than 50% of such recreational open space may be provided on the terrace of a podium in congested/non congested area subject to Regulation No.9.13.
In BHC, in its perusal of the comparative chart of the provisions of DCR 1991 and DCPR 2034 as well as UDCPR, prima facie came to the conclusion that there appears to be a deviation in the exact location at which open recreational spaces must be provided. It was held that SEIAA could not postpone decisions on EC proposals basis solely on the NGT Order, which applied to specific cases and did not have jurisdiction over all proposal submitted under DCPR 2034.
Thus, it was directed that all questions on merits relating to permissibility of providing recreational open spaces at podium level in a particular project are left open to be decided by SIEAA on its own merits.
Further, it was directed SEIAA to take into consideration the provisions of DCPR 2034 or UDCPR as applicable, in order to determine the permissibility of the provision of open recreational spaces on the podium level in a particular project preferably within a period of eight weeks from the date of order.

SC Stay Order:

A Special Leave Petition ("SLP") was filed before the SC challenging the order passed by the BHC. In consideration of the said SLP, the SC has issued a stay on the BHC Order dated 27th January 2023 and have issued notices to the State, SEIAA, NAREDCO, Slum Rehabilitation Authority ("SRA").
The matter is now scheduled for hearing on 31st July 2023.

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