Guidelines of Supreme court regarding recreational spaces while constructing buildings

 It is also relevant to note that the development schemes under DCRs. 33(7), 33(9) and 33(10) provide for lesser Recreational area/Amenity spaces. Thus, under DCR 33(7) and 33(10) reduction in the Amenity open space is permitted to make the project viable, but still minimum 8 percent of the project area is required to be maintained as Amenity open space. Similarly, for the schemes under DCR 33(9) minimum 10 percent of the plot area is required to be retained as Recreational space. In other properties, where there are no such constraints to make the development schemes of rehabilitation or reconstruction of old buildings or slums viable, there is no reason why the Amenity open space at the ground level should be read as permissible, to be reduced. The only ground being given is to provide more parking and more accommodation, meaning thereby more construction, concretization and financial expediency. Such a purpose cannot be read into the provisions as they presently exist, nor is it desirable to do so from the point of view of the requirement of minimum open spaces at the ground level.

27. Besides, as pointed out by Mr. Divan, the requirement of having trees and open land around them is necessary from an environmental point of view, since there is already excessive concretization, and a very serious reduction in open spaces at the ground level. It must be noted that the right to a clean and healthy environment is within the ambit of Article 21, as has been noted in Court on its Own Motion v. Union of India reported inMANU/SC/1094/2012 : 2012 (12) SCALE 307 in the following words:

The scheme under the Indian Constitution unambiguously enshrines in itself the right of a citizen to life under Article 21 of the Constitution. The right to life is a right to live with dignity, safety and in a clean environment.

The right to a clean and pollution free environment, is also a right under our common-law jurisprudence, as has been held by this Court in Vellore Citizen's Welfare Forum v. Union of India and Ors. reported in MANU/SC/0686/1996 : (1996) 5 SCC 647 where this Court held:

The Constitutional and statutory provisions protect a persons right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of a clean environment.

In the same judgment the Court emphasized the importance of Sustainable Development, and the need for a balance between development and ecological considerations, in the following words:

The traditional concept that development and ecology are opposed to each other, is no longer acceptable....

'Sustainable Development' is the answer...Sustainable Development as defined by the Brundtland Report means "development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". We have no hesitation in holding that "Sustainable Development' as a balancing concept between ecology and development has been accepted as a part of the Customary International Law though its salient features have yet to be finalised by the International Law jurists.

28. 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 lay-out) 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 the issue No. 1 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.1

 Citation: 2014(2)ABR73, 2014(2)ALLMR422, 2014(1)BomCR586, 2013(15)SCALE379, 2014 (2) SCJ 178

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 11150 of 2013 (Arising out of Special Leave Petition (Civil) No. 33402/2012)

Decided On: 17.12.2013

Appellants: Municipal Corporation of Greater Mumbai and Ors.
Vs.
Respondent: Kohinoor CTNL Infrastructure Company Private Limited and Anr.

Hon'ble Judges/Coram:H.L. Gokhale and Jasti Chelameswar, JJ.

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