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The Supreme Court's recent decision to stay a Bombay High Court order from January 2023 has dealt a blow to builders. The HC order had allowed the construction of recreation grounds (RG) on the podiums of their towers, providing relief to builders whose projects were facing delays due to the National Green Tribunal's (NGT) September 2022 ruling. The NGT had stated that developers could not designate any podium in a building as an RG, emphasizing that a recreational ground should be open to the sky to facilitate tree planting.
The builders' association Naredco had sought clarification from the HC regarding the NGT order, as it was affecting their projects' environmental clearances from the State Environment Impact Assessment Authority (SEIAA). The HC had directed SEIAA to decide on these clearance requests within eight weeks, independent of the NGT order. The HC bench, comprised of Acting Chief Justice S V Gangapurwala and Justice Sandeep Marne, ruled that SEIAA could not postpone decisions on EC proposals based solely on the NGT's September 2022 judgment, which applied to specific cases and did not have jurisdiction over all proposals submitted under the Development Control Promotion Regulation (DCPR) 2034.
In response to a special leave petition (SLP) filed by advocate and activist Sagar Devre challenging the HC order, the Supreme Court issued a notice to the state, SEIAA, Slum Rehabilitation Authority, and the builders' association Naredco West Foundation. The notice, addressed by an apex court bench of Justices Abhay Oka and Rajesh Bindal, scheduled the hearing for July 31.
During the proceedings, Devre's advocate, Vivek Shukla, argued that the HC order effectively required SEIAA to approve proposals for podium-level gardens and RGs instead of insisting on ground-level provisions. Shukla referred to the NGT order, which mandated RG reservations on the ground level in accordance with a Supreme Court ruling in a case involving BMC versus Kohinoor and others. Shukla contended that the HC had disregarded the judgments of both the apex court and NGT, despite the HC order acknowledging the necessity of providing RGs on the ground.
Justice Oka, leading the Supreme Court bench, considered Shukla's arguments and issued a notice while stating, "In the meanwhile, there will be a stay of the directions contained in the impugned order passed by the High Court."
The Supreme Court's decision to stay the HC order has introduced further uncertainty and challenges for builders, as they now face the prospect of their projects being subjected to stricter environmental regulations. The outcome of the upcoming hearing in July will likely shape the future of the RG provision in building projects and determine whether podiums can be utilized as recreation grounds or if they must be allocated at ground level, as specified by the NGT and the Supreme Court in previous cases. Builders will eagerly await the court's ruling as it will have significant implications for their ongoing and future projects.
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