Residents Welfare Association vs The Union Territory Of Chandigarh

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2023 (Arising out of SLP(C) No. 4950 of 2022)

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER ...APPELLANT(S)

VERSUS THE UNION TERRITORY OF CHANDIGARH AND OTHERS ...RESPONDENT(S)

WITH

CIVIL APPEAL NO. OF 2023 (Arising out of SLP(C) No. 5489 of 2022)

INDEX

I. BACKGROUND…………………………………...... Paras 3 to 12 II. PROCEEDINGS BEFORE THE HIGH COURT………………………………………………… Paras 13 to 19 III. SUBMISSIONS OF APPELLANTS……………….. Paras 20 to 29 IV. SUBMISSIONS OF RESPONDENTS……………. Paras 30 to 40 V. STATUTORY PROVISIONS……………………….. Paras 41 to 51 VI. FINDINGS OF THE HIGH COURT Paras 52 to 56 VII. REPORT OF THE BOARD OF ‘INQUIRY AND HEARING’…………………………………………….. Paras 57 to 63 VIII CHANDIGARH MASTER PLAN­2031…………… Paras 64 to 77 . Signature Not Verified IX. CONSIDERATION OF CITED CASES…………… Paras 78 to 91 Digitally signed by Deepak Singh X. CONSIDERATION OF ISSUES…………………… Paras 92 to 144 XI. ENVIRONMENTAL ISSUES………………………. Paras 145 to 152 Date: 2023.01.10 14:57:56 IST Reason:

XII. CONCLUSION……………………………………….. Paras 153 to 171

1 JUDGMENT

B.R. GAVAI, J.

1. Leave granted.

2. “Let this be a new town, symbolic of freedom of India

unfettered by the traditions of the past…an expressions of the

nation’s faith in the future”.

These were the words of Pandit Jawaharlal Nehru,

India’s First Prime Minister, while laying down the founding

principles of a new city for Capital of the State of Punjab.

I. BACKGROUND:

3. After India attained independence in the year 1947,

the Government of Punjab in consultation with the

Government of India approved the site for the new Capital of

the State in March 1948. The new city was designed by

French Architect Le Corbusier in association with other

architects, namely, Pierre Jeanneret, Jane B. Drew and

Maxwell Fry. The city was planned as a living example of

urban design, landscaping and architecture. It was a city to

be created with the use of ordinary construction materials

2 and embellished with integral works of art. Chandigarh’s

monumental architecture as enunciated by Le Corbusier is

based on the principles of town planning concept of Sun,

Space, and Verdure. Le Corbusier incorporated principles of

light, space and greenery in the plan and used the human

body as a metaphor – the ‘head’ contained the Capital

Complex, the ‘heart’ being the Commercial Centre, i.e.,

Sector 17, lungs (the leisure valley, innumerable open spaces

and sector greens), the intellect (the cultural and educational

institutions), the viscera (the industrial area), and the ‘arms’

having academic and leisure facilities like open courtyards

etc. The circulation system was conceived as having seven

types of roads known as 7Vs.

4. Chandigarh has been envisaged as an administrative

city with hierarchical distribution of population being such,

that the population density in the northern sectors is low,

which increases towards the southern sectors. Chandigarh

has been planned as a low­rise city, and has been so

developed that even after sixty years of its inception, it

3 retains the original concept to a large extent. This is how the

concept of this “beautiful city” was born.

5. On division of the State of Punjab into States of

Punjab and Haryana, the city was made a Union Territory

(UT), and became the Capital for both the States. The city of

Chandigarh was developed into two phases, Phase­I having

Sectors 1 to 30 and Phase­II having Sectors 31 to 47. Phase­

I was designed for low­rise plotted development for a total

population of 1,50,000. Phase­II Sectors were to have a much

higher density as compared to Phase­I Sectors.

6. In the year 1952, the Union of India, in order to

regulate development in the city of Chandigarh, enacted the

Capital of Punjab (Development and Regulations) Act, 1952

(hereinafter referred to as “the 1952 Act”). In the year 1960,

the Government of Punjab, in exercise of the powers

conferred by Sections 5 and 22 of the 1952 Act, made the

Chandigarh (Sale of Sites and Building) Rules, 1960

(hereinafter referred to as “the 1960 Rules”). Rule 14 of the

1960 Rules prohibits fragmentation or amalgamation of any

site or building. The validity of Rule 14 of the 1960 Rules

4 was challenged before the High Court of Punjab & Haryana

(for short, “High Court”) in the case of Chander Parkash

Malhotra v. Ved Parkash Malhotra and Others1. Vide its

judgment in the said case, the High Court held the said Rule

14 to be ultra vires to the Constitution of India. However,

this Court, in the case of Chandigarh Administration v.

Chander Parkash Malhotra and Others2, reversed the said

judgment of the High Court to the extent it declared Rule 14

of the 1960 Rules to be ultra vires.

7. In the year 2001, the Administrator, UT of

Chandigarh, in exercise of powers conferred under Sections 5

and 22 of the 1952 Act, framed the Chandigarh Apartment

Rules, 2001 (hereinafter referred to as “the 2001 Rules”). By

virtue of the 2001 Rules, even in case of single residential

units, it was permissible to sub­divide it into more than one

apartment. The citizens of UT of Chandigarh vehemently

opposed the construction of apartments, which according to

them, had the effect of destroying the character of the city.

In view of the public outcry, the 2001 Rules were repealed by

1 1991 SCC OnLine P&H 245 2 Civil Appeal No. 4974 of 1992 dated 24th November 1992 5 notification dated 1st October 2007. In the same year, i.e.,

2007, the 1960 Rules were also repealed. The Administrator,

UT of Chandigarh, in exercise of powers conferred under

Section 22 of the 1952 Act, framed the Chandigarh Estate

Rules, 2007 (hereinafter referred to as “the 2007 Rules”) on

7th November 2007. Rule 16 of the 2007 Rules again

prohibited fragmentation/amalgamation of any site or

building.

8. In the year 2009, a Committee for Chandigarh

Master Plan, 2031 (for short, “CMP­2031”) came to be

constituted. In the year 2010, a Committee of Experts (for

short, “Expert Committee”) came to be constituted to look at

both the original concept of the city of Chandigarh as well as

the maintenance of important heritage buildings in the UT of

Chandigarh.

9. In the Draft CMP­2031, the 2001 Rules were re­

introduced. Prior to the finalization of the CMP­2031,

objections were invited. A Board of “Inquiry and Hearing”

(hereinafter referred to as, “the said Board”) was constituted

to look at the grievances of the public at large. One of the

6 major objections raised to the draft CMP­2031 was with

regard to re­introduction of the 2001 Rules. The said Board,

after considering objections, recommended that the re­

introduction of the 2001 Rules should be deleted, and re­

densification of any government residential/institutional

pocket in Phase­I sectors should only be done with the prior

approval of the Chandigarh Heritage Conservation Committee

(for short, “Heritage Committee”).

10. The aforesaid recommendations were accepted by

the Central Government and all references to the apartments

in the Draft CMP­2031 were deleted from the Final CMP­

2031, which was notified under Section 4(1)(f) of the 1952

Act and Sections 3, 4, 5 and 11 of the Punjab New Capital

(Periphery) Control Act, 1952 and under Article 239 of the

Constitution of India.

11. Noticing that in spite of the repeal of the 2001 Rules

and the fact that further fragmentation of the property was

prohibited as per Rule 16 of the 2007 Rules, a large number

of single dwelling units were being surreptitiously converted

into apartments, the appellants­Association filed a Public

7 Interest Litigation being CWP No. 18559 of 2016 before the

High Court. It was the grievance of the appellants that

certain developers were purchasing the plots, constructing

three apartments thereon and thereafter selling them to three

different persons. It was sought to be contended that though

the 2001 Rules were repealed, thereby prohibiting the

construction of apartments on plots meant for single

dwelling, and though the 1960 Rules and the 2007 Rules

prohibited the fragmentation/amalgamation, some

unscrupulous elements were attempting to construct and sell

the apartments by indulging into illegal practices. The

prayer sought in the petition before the High Court was for

restraining the respondents from permitting residential plots

in the UT of Chandigarh which were allotted as single

dwelling units to be constructed or utilized as apartments. A

prayer was also sought directing the respondent­Chandigarh

Administration to take appropriate action against the

offending owners for violation of the undertakings submitted

by them while applying for occupation certificate.

8

12. The High Court, vide order dated 15th September

2016, issued notice in the said writ petition. In the said

proceedings, an application bearing No. 16263 of 2016 came

to be filed praying for stay of conversion of single dwelling

units into apartments. A reply came to be filed in the said

writ petition by the UT of Chandigarh, stating therein that

the Chandigarh Administration does not permit a residential

house to be converted into an apartment on account of the

fact that the 2001 Rules now stand repealed.

II. PROCEEDINGS BEFORE THE HIGH COURT:

13. Since, in spite of its specific stand, Chandigarh

Administration was not taking any steps to prevent

fragmentation/apartmentalisation of single dwelling units, a

Special Leave Petition (Civil) being No. 15789 of 2017 came to

be filed before this Court. This Court, vide order dated 24 th

May 2017, allowed to withdraw the said petition.

14. The appellants­Association thereafter filed another

application being C.M. No. 1580 of 2018 in CWP No. 18559

of 2016 seeking appropriate directions to be issued to the

Chandigarh Administration to restrain percentage sale or

9 part of share sale of freehold residential houses. In the said

application, notice came to be issued by the High Court on

5th February 2018. Since no orders were passed in the said

application, another application being C.M. No.19649 of

2019 came to be filed on 16th December 2019, praying for

interim directions to the Chandigarh Administration to

identify the residential plots which were fragmented into

apartments. On 18th February 2020, notice came to be

issued in the said application. The appellants­Association

again filed SLP(Civil) No. 6642 of 2021 before this Court.

This Court, vide order dated 7 th May 2021, disposed of the

said SLP by requesting the High Court to decide the said writ

petition within a period of four months.

15. In the meantime, the High Court had appointed an

amicus curiae to assist the court. On 27 th July 2021, the

High Court passed an interim order directing the Chandigarh

Administration to carry out an exercise whereby the

properties/buildings were to be identified wherein, shares be

it to the extent of 50%, 30% or 20% has been

sold/transferred to a person outside the family of the original

10 owner/shareholder. This was to be done on the basis of the

record maintained in the office of the Estate Officer. The

second step was to carry out a physical inspection of such

identified buildings/dwelling units, to find out as to whether

the sale of shares has actually translated into the buyer

occupying an independent floor in the otherwise composite

dwelling unit, or to find out as to whether independent floors

are in the process of being constructed.

16. The said order came to be challenged before this

Court in SLP(Civil) Nos. 13120 and 12562 of 2021. The

survey which was directed to be conducted by the High Court

vide its order dated 27th July 2021, came to be stayed by this

Court vide order dated 9th August 2021. This Court, on being

informed that the survey had already been completed, vide

order dated 6th September 2021, clarified that the High Court

can proceed with the hearing of the writ petition pending

before it after taking into consideration the report.

17. At the stage of hearing, the High Court considered

the following issues raised by the learned amicus:

11

“Issue No.1 ­ What is the meaning to be assigned to

the term "Fragmentation" under the 1952 Act and

the Rules framed thereunder?

Issue No.2 ­ Is sale of share(s) by owner or co­owner

of a residential building prohibited under the 1952

Act or Rules made thereunder?

Issue No.3 ­ Does sale of share(s) by owner or co­

owner in a residential building amount to

'fragmentation'?

Issue No.4 ­ What is the status of a co­owner by

virtue of purchase of share(s) in a residential

building?

Issue No.5 ­ Can occupation/possession of a

specific portion of the joint property be termed as

apartmentalization?

Issue No.6 ­ Whether the residential building

constructed on a residential plot in UT Chandigarh

meant for single family use and to be treated as a

Single Dwelling Unit?”

12

18. Vide the impugned judgment dated 23rd November

2021, the High Court dismissed the writ petition. The High

Court held that there was no provision under the 1952 Act or

the Rules framed thereunder governing transfer of shares in

relation to a site or building whether owned singly or under

joint ownership. However, the High Court held that the sale

of share(s) out of a building/site by the

allottee(s)/transferee(s) was not barred, and rather was

permissible under the general civil law. It further held that

the status of such building/site, however, even after the sale

of share(s) continues to be under joint ownership. It further

held that for constituting a fragmentation, there has to be an

element of permanent severance. Mere construction of three

floors on a private plot and utilization of the same as

independent units would not amount to fragmentation. It

held that unless there has been a sub­division of the building

duly recognized by the Estate Officer along with

proportionate share in common areas and common facilities,

the same would not amount to apartmentalization.

13

19. The High Court, however, found that the real estate

agent/developer/seller, in order to extract maximum

premium, would tend to paint a picture to the prospective

buyer that by virtue of purchase of a share in the building,

he would not only be entitled to have exclusive possession

but also ownership rights. The High Court observed that the

same was not permissible and the purchaser, by purchase of

share(s), only became a co­owner/co­sharer in the entire

building to the extent of shareholding. In the eventuality of

the dispute arising between the co­sharers/co­owners, the

only remedy would be to put the property to auction and they

would be only entitled to the sale proceeds as per the

share(s). It therefore issued certain directions to the UT of

Chandigarh in order to protect the interests of such innocent

purchasers. Being aggrieved by the impugned judgment, the

appellants­original writ petitioners are before this Court.

III. SUBMISSIONS OF APPELLANTS:

20. We have heard Shri P.S. Patwalia, learned Senior

Counsel appearing on behalf of the appellants in the main

matter, Shri Ranjit Kumar, learned Senior Counsel appearing

14 on behalf of the appellants in appeal arising out of SLP(C) No.

5489 of 2022, Shri K.M. Natraj, learned Additional Solicitor

General (ASG) appearing on behalf of respondent No.1 in

both the appeals, Shri Kapil Sibal, learned Senior Counsel

appearing on behalf of respondent No.6 in the main matter

and for respondent Nos. 7, 8 and 9 in appeal arising out of

SLP(C) No. 5489 of 2022 and Shri Gaurav Chopra and Shri

Ajay Tewari, learned Senior Counsel appearing on behalf of

the applicant(s)/caveator(s) in both the appeals.

21. Shri Patwalia submitted that, Phase­I Sectors, which

constitute “Corbusian Chandigarh”, have now derived a

modern heritage value. He submitted that, if any apartment

is permitted to be constructed on single dwelling unit, it will

jeopardize the original character of the city. He further

submitted that a perusal of the report of the said Board itself

would reveal that, though the Draft CMP­2031 provided for

the re­introduction of the apartments, the said Board had

recommended against it, and the said recommendation was

accepted.

15

22. Shri Patwalia submitted that, though the 2001 Rules

permitted apartmentalization, on account of hue and cry of

public at large, the same were repealed in the year 2007. He

further submitted that the 1960 Rules as well as the 2007

Rules specifically prohibited fragmentation or amalgamation

of any site or building. However, through a certain modus

operandi, the builders/developers were constructing three

apartments on three floors, thereafter selling the said

apartments to three persons, who would enter into a

Memorandum of Understanding (MoU). Under the MoU, the

person occupying the ground floor and basement would get

50% share in the plot, the person occupying the first floor

would get 30%, and the person occupying the second or third

floor would get 20%. He submitted that therefore, what is

directly prohibited by law, is being indirectly done by the

builders/developers. He submitted that, though a specific

undertaking is given not to convert the site/building into

apartments, the builders/developers were violating the said

undertaking openly. He further submitted that though the

Chandigarh Administration has clearly admitted that it was

not permitting the construction of such apartments, and that 16 under the law, such apartments were prohibited, it was

sanctioning the building plans which ex­facie showed that

they were for the construction of three apartments. He

submitted that the High Court itself has observed that the

Chandigarh Administration has not been alive to such

illegalities being committed by the unscrupulous

builders/developers.

23. Shri Patwalia submitted that through such modus

operandi of the developers/builders, and inaction on the part

of Chandigarh Administration, what is prohibited in law, is

being permitted indirectly.

24. Shri Patwalia further submitted that the CMP­2031

prohibits construction of apartments. He submits that

though CMP­2031 is binding on the respondents under

which apartmentalization is not permissible, the apartments

are being indirectly permitted to be constructed and sold,

giving rise to illegal transactions. It is submitted that on one

hand, the Chandigarh Administration in its affidavit states

that it does not permit construction of apartments, on the

other hand, it is permitting the same indirectly.

17

25. Shri Patwalia submitted that when Chandigarh was

conceptualized, it was decided that Phase­I will have

bungalows in the residential areas having a green area in the

frontyard and backyard of the houses. However, on account

of apartmentalisation, the green areas now have been

converted into concrete areas, and the very concept of having

a green city is being defeated.

26. Shri Ranjit Kumar also submitted that the learned

Judges of the Division Bench of the High Court have erred in

holding that mere construction of three floors on a private

plot and utilization of the same as independent units would

not amount to fragmentation. He submitted that, the finding

of the High Court that fragmentation will take place only if

there is a division of the site or division of the building with

an element of exclusive ownership, is patently erroneous. He

submitted that the Chandigarh Administration is taking a

totally contradictory stand. It is submitted that, on one hand

it is admitted by the Chandigarh Administration that it is not

permissible to build apartments on a plot allotted to a single

dwelling unit and on the other hand, it is admitting

18 documents for registration which, in effect, permit a single

plot to be fragmented into three apartments.

27. Shri Ranjit Kumar submitted that Chandigarh has

been included in the Tentative United Nations Educational,

Scientific and Cultural Organization (UNESCO) World

Heritage List due to its outstanding universal value, and the

same needs to be maintained by prohibiting haphazard

developments which will take away its distinct character.

28. Shri Kapil Sibal also supported the contention as

raised on behalf of the appellants. He submitted that

rampant developments are being permitted while expanding

urban areas without taking into consideration its impact on

environment. He submitted that when such developments

are permitted, no studies are conducted to find out as to

whether the necessary infrastructure like water, sewage,

roads etc. exists. He submitted that even in the CMP­2031,

it has been recommended that an Effective Environment

Management Plan has to be devised for the entire region

including Chandigarh, which includes the environmental

strategy, monitoring regulation, institutional capacity

19 building and economic incentives. It is submitted that

though such a recommendation is made in the CMP­2031,

the Chandigarh Administration is permitting construction of

single dwelling units into apartments. He submitted that

this is a fit case wherein this Court should exercise its

powers under Article 142 of the Constitution of India, and

direct that Environmental Impact Assessment (for short,

“EIA”) is to be mandatorily carried out before permitting

expansion of urban areas.

29. All the learned counsel therefore submitted that the

impugned judgment of the High Court needs to be set aside

and a mandamus needs to be issued to the respondents

restraining them from permitting construction of apartments

on single dwelling units. They further submitted that a

direction also needs to be issued to the Chandigarh

Administration to take action against the persons, who, in

contravention of the Rules, are constructing apartments on

single dwelling units.

IV. SUBMISSIONS OF RESPONDENTS:

20

30. Shri Ajay Tewari, on the contrary, submitted that the

apprehension as raised by the appellants are totally

unwarranted. It is submitted that the CMP­2031 duly takes

care of the environmental aspects so as to ensure that the

present character of the city on its greenness is not

compromised. He submitted that the CMP­2031 would

reveal that the growth of population in Chandigarh as per the

2011 Census is less than the predicted growth. He

submitted that the growth rate of merely 17.10% from the

years 2001 to 2011 is the slowest since its inception. It is

submitted that the population in the year 2011 is 10,54,686

with an addition of 1,54,051 during the last decade. He

further submitted that, as a matter of fact, the forest

coverage in Chandigarh has doubled in the last 20 years.

31. Shri Tewari submitted that a ‘transferee’ has been

defined in the 1952 Act to mean “a person (including a firm

or, other body of individuals, whether incorporated or not) to

whom a site or building is transferred in any manner

whatsoever, under this Act and includes his successors and

assigns”. He therefore submitted that the 1952 Act itself

21 permits a transfer to be made to more than one individual

and as such, the contention that, there cannot be more than

one apartment in a single dwelling unit, is without

substance.

32. Shri Tewari further submitted that Rule 4 of the

Chandigarh Lease­Hold of Sites and Building Rules, 1973

(hereinafter referred to as “the 1973 Rules”) provides that the

Chandigarh Administration may demise sites and buildings

at Chandigarh on lease for 99 years. It further provides that

the lease may be given by allotment or by auction in

accordance with these Rules. He submitted that Rule 17 of

the 1973 Rules permits the lease to be taken jointly by more

than one person. It is submitted that when the lease itself is

permitted to be taken jointly by more than one person, then

there is no merit in the stand that a building cannot be

constructed on a site having more than one apartment. Shri

Tewari further submitted that Rule 13 of the 2007 Rules also

permits an allotment to be taken jointly by more than one

person. The only requirement in such a case is that the

22 liability to pay premium as well as the rent or any penalty

under these Rules shall be joint and several.

33. Shri Tewari further submitted that a perusal of

Chandigarh Building Rules (Urban), 2017 (for short, “the

2017 Rules”) which were enacted in exercise of the powers

conferred by the 1952 Act, would also show that more than

one apartment is permitted to be constructed on A single

dwelling unit. He submitted that under sub­clause (a) of

Clause (22) of Rule 3 of the 2017 Rules, a ‘residential

building’ is defined to be “a building used or constructed or

adapted to be used wholly or principally for human habitation

and includes all garages, or other out­buildings appurtenant

thereto”. Under Clause (32) thereof, ‘dwelling unit’ has been

defined to be “a building or a part thereof which is used or is

intended to be used by a person or family for habitation

comprising of kitchen, toilet and room”. Clause (82) thereof

defines ‘storey’ as “any horizontal division of a building so

constructed as to be capable of use as a living apartment,

although such horizontal division may not extend over the

whole depth or width of the building but shall not include

23 mezzanine floor”. He submitted that Rule 4 thereof talks

about ‘residential use’, which exhaustively deals with the

entire details with regard to the maximum height of the

building, maximum area, minimum area and the courtyards.

34. Shri Tewari submitted that the High Court has

rightly held that an apartment can be construed to be such

only if it was an apartment as per the meaning of apartment

given in the 2001 Rules. He submitted that the provisions of

the 2001 Rules are similar to the provisions of the Haryana

Apartment Ownership Act, 1983. He submitted that under

the 2001 Rules, each apartment owner is entitled to the

exclusive ownership and possession of the apartment in

accordance with the declaration. However, when more than

one person jointly construct a building on a plot and occupy

one floor each, they are not entitled to exclusive ownership of

the apartment but have shares in the joint property. The

learned Senior Counsel relies on the judgment of this Court

in the case of Kochkunju Nair v. Koshy Alexander and

Others3 in support of the proposition that all co­owners have

equal rights and coordinate interest in the property, though 3 (1999) 3 SCC 482 24 their shares may be either fixed or indeterminate. He

submitted that this Court has held that each co­owner has,

in theory, an interest in every infinitesimal portion of the

subject matter, and each has the right, irrespective of the

quantity of his interest, to be in possession of every part and

parcel of the property, jointly with others. It is submitted

that as such, the modus operandi adopted is wholly

permissible, whereby, each of the co­sharers would be

entitled to be in possession of the part assigned to them

jointly with others. He relies on the judgment of the Privy

Council in the case of Hardit Singh and Others v.

Gurmukh Singh and Others4 in support of the proposition.

35. Shri Tewari relies on the judgment of the Division

Bench of the High Court in the case of Sant Ram v. Daya

Ram and Others5 in support of the proposition that though

the Mitakshara School of Hindu Law recognized ownership of

each co­parcener over the whole of joint property and over

each part thereof, which bears some similarity to joint

tenancy of English law; the Dayabhaga School adhered to the

4 1918 SCC OnLine PC 2 5 AIR 1961 P&H 528 25 doctrine of ownership in specified shares in the undivided

property having similar features as in tenancy in common. It

is therefore submitted that the co­sharers are entitled to

jointly construct a building as per their own shares. It is

submitted that this Court in the case of Jai Singh and

Others v. Gurmej Singh6 has approved this legal position. Shri Tewari further relies on the judgment of this Court in

the case of Tilak Raj Bakshi v. Avinash Chand Sharma

(Dead) Through Legal Representatives and Others 7 in

support of the proposition that assignment in favour of a

party would not amount to fragmentation.

36. Shri Tewari, in a nutshell, submitted that the

dwelling units cannot be construed to be the same as

apartments under the 2001 Rules, and therefore it is

permissible for more than one person to construct a building

jointly and occupy the shares of building as per their

respective shares. It is submitted that, when the Rules and

Provisions permitting three storeys are not challenged, it

would not be permissible for the appellants to contend that

6 (2009) 15 SCC 747 7 (2020) 15 SCC 605 26 the construction of three storeys, wherein three different

persons reside, is not permissible in law. It is submitted that

the CMP­2031 has considered everything and further that

the said CMP­2031 has also not been challenged.

37. Shri Tewari submitted that if the contention as

raised on behalf of the appellants is accepted, then an

anomalous situation would arise inasmuch as co­owners

who are part of one family would be entitled to construct

three apartments whereas others could not. This would lead

to a situation where some co­owners are superior to others.

38. Shri Gaurav Chopra submitted that there is nothing

in law which prohibits three strangers to purchase a plot

from one person and then develop the said plot by

constructing a building having three different floors and

occupy the said floors. He submitted that there is no bar for

the same either under Rule 14 of the 1960 Rules or Rule 16

of the 2007 Rules. He submitted that if the contention of the

appellants is accepted, it would lead to an anomalous

situation wherein a person, who has in a bona fide manner

purchased a share of a building and consequently occupied a

27 floor of such a building, would be deprived of selling the

same. He submitted that such an inference would put

unreasonable restrictions on the rights of the person to deal

with the property. Shri Chopra submitted that a perusal of

the CMP­2031 itself would reveal that the original concept

itself included re­densification of Phase­I in order to

accommodate the growing population of the city. The

learned Senior Counsel submitted that the Expert Committee

constituted for preparation of CMP­2031 has considered all

these aspects. He submitted that the CMP­2031 itself would

show that Phase­I (Sectors 1 to 30) had a holding capacity of

34 persons per acre whereas the present density is only 26

persons per acre. It is therefore submitted that the CMP­

2031 itself would reveal that there was a scope for additional

units in Phase­I. He submitted that when the CMP­2031,

which is a result of an elaborate exercise by the experts in

the field, permits such a development, there is nothing which

would prohibit such development.

39. Shri Chopra further submitted that Section 5 of the

Transfer of Property Act, 1882 (for short, “the TP Act”) itself

28 permits transfer of property to one or more living persons.

He submitted that Section 7 of the TP Act further permits a

person to transfer such property either wholly or in part. It

is contended that Section 10 of the TP Act provides that any

condition or limitation absolutely restraining the transferee

or any other person claiming under him from parting with or

disposing of his interest in the property is void. It is further

submitted that Section 44 of the TP Act also permits one of

two or more co­owners of immoveable property to transfer his

share of such property or any interest therein. It is

submitted that if the contention of the appellants is accepted,

it would be contrary to the provisions of the TP Act.

40. Shri K.M. Natraj submitted that ownership of a

building is different from ownership of a land. He therefore

submitted that it is not necessary that a person who owns a

building, would also own the land. He submitted that there

is nothing in law which prohibits a building to be

constructed and owned by three different persons. He relies

on the judgments of this Court in the cases of Dr. K.A.

Dhairyawan and Others v. J.R. Thakur and Others8 and 8 [1959] SCR 799 29 Rev. FR. K.C. Alexander v. State of Kerala9. He also relies

on the judgment of the Karnataka High Court, Bombay High

Court and Rajasthan High Court in the cases of R.G.

Hiremath and Another v. T. Krishnappa10, Laxmipat

Singhania v. Larsen and Toubro, Ltd.11 and Saiffuddin

v. The Commissioner of Income Tax (129)12. The learned

ASG also submitted that when the building regulations

permit construction of three floors, the relief as sought by the

appellants cannot be granted.

V. STATUTORY PROVISIONS:

41. For appreciating the rival contentions, it will be

necessary to refer to certain statutory provisions.

42. The 1952 Act came to be enacted for facilitating the

construction of the New Capital of Punjab at Chandigarh.

The Statement of Objects and Reasons of the 1952 Act would

reveal that the said Act was enacted for vesting legal

authority with the State Government to regulate the sale of

building sites and to promulgate building rules on the lines

9 (1973) 2 SCC 737 10 1977 SCC OnLine Kar 96 11 1949 SCC OnLine Bom 11 12 1985 SCC OnLine Raj 97 30 of Municipal Bye­laws so long as a properly constituted local

body does not take over the administration of the city.

Clause (k) of Section 2 of the 1952 Act defines ‘transferee’,

which reads thus:

“2. Definitions.­ …………..

(k) “transferee” means a person (including a firm or other body of individuals, whether incorporated or not) to whom a site or building is transferred in any manner whatsoever, under this Act and includes his successors and assigns.”

43. It is sought to be urged on behalf of the respondents

that ‘transferee’ as defined under the 1952 Act means a

person including a firm or other body of individuals, whether

incorporated or not, to whom a site or building is transferred

in any manner whatsoever, under this Act and includes his

successors and assigns. It is also submitted that under the

1973 Rules, a lease could be jointly granted to more than one

person. It is therefore submitted that there could be no

impediment in the construction of three apartments on three

floors which could be occupied by three different persons.

On the contrary, it is sought to be urged on behalf of the

31 appellants that the term ‘person’ has to be used applying the

principle of ejusdem generis. It is submitted that the words

“other body of individuals, whether incorporated or not” are

preceded by a word ‘firm’ and as such, it should be construed

that the said term would be applicable only to a company,

corporation, society etc.

44. Section 3 of the 1952 Act empowers the Central

Government to sell, lease or otherwise transfer, whether by

auction, allotment or otherwise, any land or building

belonging to the Government of Chandigarh on such terms

and conditions as it may subject to any rules that may be

made under this Act, think fit to impose.

45. Section 4 of the 1952 Act empowers the Central

Government or the Chief Administrator to issue such

directions for the purpose of proper planning or development

of Chandigarh as may be considered necessary with regard to

matters mentioned in Clauses (a) to (f) thereto. Sub­section

(2) of Section 4 thereof provides that every transferee is liable

to comply with the said directions.

32

46. Section 5 of the 1952 Act provides that no person

can erect or occupy any building at Chandigarh in

contravention of any building rules made under sub­section

(2) thereof. Under sub­section (2) of Section 5 thereof, the

Central Government is empowered to make rules to regulate

the erection of buildings for the purpose of matters

mentioned in Clauses (a) to (i) thereto.

47. Section 22 of the 1952 Act also enables the Central

Government to make rules for carrying out the purposes of

the said Act.

48. The 1960 Rules came to be notified on 8 th March

1960. Rule 14 of the 1960 Rules reads thus:

“14. Fragmentation ­ [Section 3 and 22 (2)(a)] ­ No fragmentation or amalgamation of any site or building shall be permitted:

Provided that amalgamation of two or more adjoining sites shall be permissible only in the case of commercial or industrial sites subject to the condition that the revised plans are approved by the competent authority, prior thereto. Provided further that fragmentation of sites shall be permitted only in case of the persons applying for conversion under the “Chandigarh Conversion of Land Use of Industrial Sites into Commercial Activity/Services in Industrial Area, Phase­I and II, Chandigarh Scheme, 2005, notified vide

33 No.28/8/51­UTFI(3)­2005/6658­6662, dated 19.09.2005.”

49. Subsequently, the 2001 Rules came to be notified on

20th December 2001. It will be relevant to refer to certain

provisions of the said Rules, which read thus:

“2. Definitions:

(a) "Apartment" means each sub­division of a building dully recognized by the Estate Officer, alongwith the proportionate share in common areas and common facilities, as well as any other property rights appurtenant thereto, shall constitute an Apartment.

(b) "Building" means any construction or part of construction or proposed construction in Chandigarh as defined in Clause (x) of Rule 2 of the Punjab Capital (Development and Regulation) Building Rules, 1952.

3. Sub­division of Building:

(1) Every building subject to the provisions of the Capital of Punjab (Development and Regulation) Act, 1952 and the separate and independent units in accordance with these rules. Each such sub­ division of a building shall be recognized as a distinct, identifiable property to which the owner lessee shall have title along with proportionate rights in the declared common areas and common facilities. Each sub­division along with common areas, common facilities, rights of access easements and other ownership rights shall constitute a single, distinct identified, property which may be used transferred or disposed by the owner/lessees in accordance with the applicable law and rules.

34 (2) A building may be sub­divided through a declaration made by the owners/lessees to the Estate Officer in the prescribed form (Form­ D). The Estate Officer shall, if he is satisfied with the completeness and correctness of information provided with the declaration and after, having the building inspected, if necessary, recognize the sub­ divisions of the building and the owners/lessees thereof, upon payment of such fee as may be notified by the Administration from time to time.

The recognition of each sub­division as an apartment by the Estate Officer under these rules shall be accorded by way of a fresh letter of allotment or a fresh conveyance deed, as the case may be, in suppression of the previous letter of allotment or conveyance deed. Such letter of deed shall recognize the owners/lessees of the apartment as the owners/lessees thereof, who shall be liable to comply with all the provisions of the Capital of Punjab (Development and Regulation) Act, 1952, and rules and regulations and orders framed thereunder. All the covenant and liabilities contained in the original allotment letter and in the conveyance deed pertaining to the building or site, shall be construed to be contained in the subsequent letter or deed, as the ease may be, even though no specific mention may have been made therein.

(3) Each sub­division, after it has been recognized as an apartment by the Estate Officer, consequent upon the filing of prescribed declaration, shall be the sole and exclusive property of the declared owners/lessees. Such owners/lessees's shall be fully and exclusively responsible and liable for complying with all provisions of the Capital of Punjab (Development and Regulation) Act, 1952, rules and orders framed thereunder, and covenants of the allotment letter and conveyance deed pertaining to the site or the building. All these provisions of rules, orders and covenants shall

35 apply, pari passu, to the apartment and to the owners/lessees thereof, as they did and would have, to the site or building and the owners/lessees thereof.

(4) Each apartment shall be entitled to separate utility connections such as water supply, sewerage and electricity, subject to building regulations. (5) Where sub­divisions of a building with more than one storey have been allotted, sold or leased by the Estate Officer, the Estate Officer may after giving notice to the owners/lessees of such sub­ divisions, declare such sub­divisions as apartments, to which the provisions of these rules shall apply.

4. Sub­Division of Residential Buildings:

(1) Any residential building situated on a plot size of less than 1400 square yards may be sub­divided into separate dwelling units with not more than one dwelling unit on each floor of the building. Each such dwelling unit shall constitute a sub­division. (2) The basement, if any, allowed in a residential building shall not constitute a separate sub­ division. The basement shall form a part of the sub­ divisions on the ground floor. In case more than one sub­division is allowed on the ground, each such sub­division may have a separate basement if building regulations so permit. Except in the case where the basement provides for facilities such as parking area at the end or other plant and equipment required for apartments in the building, the basement or portions therein may constitute a part of the sub­division on floors, other, ground floor.

(3) The garage, servant quarters, outhouse, mali hut, store, open spaces etc. not forming part of the main residential building shall not form a separate sub­ division(s) and shall form part of one or more of the apartments of the main building.

36 (4) A residential building on a plot of 1400 square yard or more may be sub­divided into two dwelling units on each floor provided that building regulations so permit.”

50. However, the 2001 Rules came to be repealed on 1 st

October 2007. Immediately thereafter, the 2007 Rules came

to be notified on 7th November 2007. Rule 16 of the said

Rules reads thus:

“16. Fragmentation/Amalgamation. No fragmentation or amalgamation of any site or building shall be permitted.

Provided that amalgamation or two or more adjoining sites with the same ownership shall be permissible only in the case of commercial or industrial sites subject to the condition that the revised plans are approved by the competent authority, prior thereto.

Provided further that fragmentation of any site shall be allowed if such fragmentation is permitted under any scheme notified by the Administration.”

51. It could thus be seen that Rule 16 of the 2007 Rules

also does not permit fragmentation/amalgamation of any site

or building. Insofar as commercial or industrial sites are

concerned, amalgamation is permitted subject to the

condition that the revised plans are approved by the

competent authority, prior thereto. However, the second 37 proviso also permits fragmentation of any site if such

fragmentation is permitted under any scheme notified by the

Administration.

VI. FINDINGS OF THE HIGH COURT:

52. In the impugned judgment, what has been held by

the High Court is that, though in view of Rule 16 of the 2007

Rules, no floor­wise sale of property is permissible and

though, it does not permit a residential house to be converted

into apartments, and that though no sale of a defined portion

or part of the building is permissible, however, mere

construction of three floors on a private plot and utilization of

the same as independent units would not amount to

fragmentation. The High Court has held that fragmentation

will take place only if there is a division of the site or division

of the building with an element of exclusive ownership, i.e.,

partition by metes and bounds, which is prohibited by Rule

16 of the 2007 Rules.

53. The High Court has held that for holding that

apartmentalization is being carried out, certain requisites

have to be met. In view of the High Court, the following

38 factors would be necessary for holding that it amounts to

apartmentalization:

(i) “There has to be a sub­division of a building duly recognized by the Estate Officer along with proportionate share in common areas and common facilities;

(ii) Each sub­division of a building to be a distinct, identifiable property to which the owner/lessee shall have title;

(iii) The recognition of each sub­division as an apartment by the Estate Officer would be accorded by way of a fresh letter of allotment or a fresh conveyance deed; and

(iv) Pursuant to such recognition, such sub­ division/apartment to be the sole and exclusive property of the declared owner/lessee.”

54. The High Court held that, in the present case, the

pre­requisites noticed hereinabove were missing. The High

Court held that, by virtue of sale of share(s) by a co­owner

and thereafter, the purchaser/vendee occupying a specific

portion of the building on the basis of an internal

arrangement/understanding, sub­division of the building as

provided under the 2001 Rules does not take place. It held

that the specific portion under the occupation of a co­owner

is not accorded any recognition by the Estate Officer in any 39 manner. It also held that the co­owner also does not become

the sole and exclusive owner of such specific portion under

his occupation.

55. As such, the High Court though holds that what was

permissible under the 2001 Rules, became impermissible

after its repeal and notification of the 2007 Rules, it held that

construction of three different floors in a building or a site

and occupation of the same by three different persons would

not amount to apartmentalization inasmuch as the same

does not have recognition of the Estate Office.

56. The 2001 Rules, in effect, permitted the apartments

to be constructed on a site and permitted sub­division of a

building as a distinct, identifiable property to which the

owner/lessee would have title along with proportionate share

in the declared common areas and common facilities.

However, on account of the objections of the residents of

Chandigarh, the 2001 Rules were repealed so as to prevent

further apartmentalization. However, it is clear from the

modus operandi as could be seen from the various

documents placed on record that the builders/developers

40 are, in fact, continuing to do the same thing which was

permissible under the 2001 Rules and became impermissible

after repeal thereof. The result of the judgment of the High

Court is that, though the construction of apartments is

prohibited, still the construction of a building and converting

it into apartments would not be impermissible since the

same would not be apartments within the meaning of the

2001 Rules.

VII. REPORT OF THE BOARD OF “INQUIRY AND HEARING”:

57. It will further be relevant to note that Chandigarh

Administration has notified the CMP­2031. It will be relevant

to note that in the draft CMP­2031, there was a provision for

apartments. For considering the objections to the provisions

made in the draft CMP­2031, the said Board, consisting of

Senior Officers of the Chandigarh Administration, was

constituted on 10th November 2013. The report of the said

Board would reveal that Chandigarh was conceived as

“Garden City” and in view of the socio­economic conditions

and living habits of the people, vertical and high­rise

buildings were ruled out. It would further reveal that Le 41 Corbusier incorporated principles of light, space and

greenery in the plan and used human body as the metaphor.

It would also reveal that Chandigarh has been planned as a

low­rise city and has been so developed that even after sixty

years of its inception, its original concept has been retained

to a large extent. The said Board, while submitting its report,

has laid down certain guiding principles, which are thus:

“GUIDING PRINCIPLES The objections received by the Administration have been considered by the Board of Inquiry keeping in view the following guiding principles:

1. Chandigarh being the capital of Punjab and Haryana is an administrative city and has to be retained as such. Industrial growth in the city needs to be limited to ensure its economic sustainability.

2. Chandigarh has heritage value and it is important to preserve and maintain the integrity of the original concepts and planning postulates of sun, space and verdure.

3. The northern sectors of Chandigarh (Corbusian in Chandigarh) should be preserved in their present form as far as possible. As far as re­development of some specific pockets is concerned, that can be done keeping proper perspective in mind. Any redevelopment in northern sectors (Phase­1) should only be done keeping the recommendations of the Expert Committee on Heritage in mind.

42 4. The Architectural Controls should be holistically reviewed, if at all. Any policy in this regard should be universal and for all times to come (till is reviewed) to avoid any arbitrariness & discrimination.

5. Chandigarh being a landlocked city and land being scarce, available land pockets be utilized for govt. use/public purpose on priority.

6. The same practice as followed while developing the New Delhi Municipal area (Lutyen’s Delhi) be followed in respect of the city of Chandigarh. The efforts should be to keep the character of the city intact.

7. The architecture of the city needs to be preserved and retained in sync with Le Corbusier’s vision.

8. The low­rise character of the city needs to be maintained.

9. The focus needs to be on building an efficient public transport system and augmenting parking spaces in the city.

10. Chandigarh has limited land and to preserve the integrity of the original concepts, it needs to be ensured that the city is not pressurized beyond its holding capacity.

11. The peripheral area and the Tri­City are intrinsically linked. One cannot be successfully planned or implemented without also looking at the other. Specific plans for every village in this area are a necessity and the overall plan must accommodate the growing requirements along with the requirement for ecological conservation of the natural resources in the vicinity.

12. State of the art best international practices in all aspects of planning & infrastructure development need to be adopted.

43 13. Chandigarh is today known throughout the world for being one of the best planned urban environment. In large part, it is due to the high proportion of open space, social facilities, civic amenities and infrastructure per living unit.

The introduction of apartment rules, by itself does not have any provision to add these essential services and facilities within the existing built­up environment. It will only add residential density while ignoring other urban infrastructure thereby being detrimental to the city environment and will only lead to the long term decline of the city.”

58. It can thus clearly be seen that the said Board has

considered that Chandigarh has a heritage value and it is

important to preserve and maintain the integrity of the

original concepts and planning postulates of Sun, Space and

Verdure. It also emphasized that the northern sectors of

Chandigarh (Corbusian Chandigarh) should be preserved in

their present form as far as possible. It also states that any

redevelopment in the northern sectors (Phase­I) should only

be done keeping the recommendations of the Heritage

Committee in mind. It further provides that the same

practice as followed while developing the New Delhi

Municipal area (Lutyen’s Delhi) be followed in respect of the

city of Chandigarh. The efforts should be to keep the

44 character of the city intact. It further emphasizes that the

architecture of the city needs to be preserved and retained in

sync with Le Corbusier’s vision. It states that the low­rise

character of the city needs to be maintained. It states that

Chandigarh is today known throughout the world for being

one of the best planned urban environment. It states that

the introduction of 2001 Rules by itself does not have any

provision to add these essential services and facilities within

the existing built­up environment. It states that it will only

add residential density while ignoring other urban

infrastructure thereby being detrimental to the city

environment and will only lead to the long­term decline of the

city.

59. Chapter III of the said Report elaborately deals with

the objections opposing redensification in Phase­I Sectors

and reintroduction of the 2001 Rules in Chandigarh. It will

be relevant to refer to the recommendations of the said

Board, which read thus:

“CHAPTER­III: RECOMMENDATIONS OF THE BOARD 3.1. RESIDENTIAL

45

All objections pertaining to the residential areas in the sectoral grid were taken together. The representationists were given oral hearing also. The main objection which has been raised is regarding redensification of Phase 1 sectors and reintroduction of Apartment Rules in Chandigarh. The proposal in this regard in the draft Master Plan is reproduced below:

"The Chandigarh Apartment Rules to be reintroduced: Sub division of residential plots of 1,000 sq. yards and above into two dwelling units on each floor shall be permitted. The residential buildings on plots of less than 1000 sq. yards will be permitted floor­wise sub­division into separate dwelling units with not more than one dwelling unit on each floor of the building. The above provisions are to be allowed within the prevailing FAR and Ground Coverage norms." P­78 of CMP­ 2031 The representationists have vehemently objected to the proposals contained in the Draft Master Plan regarding redensification and introduction of Apartment Rules. This Board had detailed deliberations on this issue and the views are as following.

Rapid growth of urban population is predicted by census and planning authorities: Chandigarh being the headquarters of Punjab and Haryana along with being a major gateway of Himachal Pradesh is uniquely positioned for exponential growth as it is an extremely attractive destination for all segn1ents of the population. With rapidly growing population that lives in slums and 46 unauthorised residential developments within the periphery area along with increasingly unaffordable housing for lower and middle class families, we feel that there is necessity to increase the housing stock for the success of the city.

Perhaps with this objective in mind, the draft master plan makes a series of recommendations for increasing the housing stock of the city. One of these is the redensification of Phase I sectors and the introduction of the Apartment Rules. A more careful examination of the facts will reveal that there exist several reasons why the introduction of Apartment Rules is not an appropriate solution to the city's requirements of affordable housing. To enumerate a few:

i) Chandigarh city has a distinct heritage value from the point of view of city architecture and the basic concepts of sun, space and verdure in planning. An expert committee on heritage was constituted by GoI, whose recommendations have already been approved by the Government of India. The Expert Heritage Committee has recommended that the northern sectors of Chandigarh (Corbusian in Chandigarh) should be preserved in their present form as far as possible. Specifically it has been recommended that no further enhancement should be given in FAR. Therefore the concept of redensification in general will go against the heritage of the city. As for as re­ development of some specific pockets is concerned, that can be done keeping proper perspective in mind. General redensification is not recommended. The expert committee has taken a serious note of the relaxations in

47 FARs and building controls already given earlier and has recommended that they should be revoked.

ii) An accurate audit of existing residential plots will reveal that many plots are inhabited by joint families, multi­generation families, have been internally divided and rented out and have legal disputes of ownership etc. Further there is a vast majority of residents who chose to live in Chandigarh due to the sub­ urban character of the city and want to live in the present sort of system without the arrangement of group housing or apartment configurations. The present representationists typically belong to this class. All these properties will not be available for redevelopment into apartment configurations irrespective of what is proposed in the master plan.

iii) Increasing density and especially housing density is an extremely important task and challenge for the planners and administrators of the city. It is something which cannot be left to the vagaries of market to determine the impact of density on the city and its infrastructure. Individual developments of apartments in plots will result in increase in density in the areas of the city that are most profitable to the developers rather than where these housing units are required.

iv) The introduction of apartment rules will most essentially create apartments in the higher cost bracket of saleable units and is unlikely to create any low income or mid income housing. The demand in the city is for lower income and middle income housing rather than housing for the rich and affluent. A

48 situation like this will predictably lead to proliferation of slums required to service the higher density of highest income group people.

v) Location of the redevelopment will also be an adhoc situation depending on individual owners' prerogative rather than a formulated or predictable distribution of apartment units in the city. City planners, therefore, will have no advance knowledge where and in what number the population density will increase.

The planning for support and supply infrastructure, therefore, will also not be able to anticipate growth. This is, therefore, the least desirable and surely the most inefficient and expensive way to add infrastructure to the city.

vi) There is a strong possibility that the introduction of the apartment rules will lead to a further increase in real estate prices. This will be in stark contradiction to the original aspect of creating more affordable housing, whereby the character of the city will be lost and gains will also not be significant.

vii) Chandigarh is today known throughout the world for being one of the best planned urban environment. In large part, it is due to the high proportion of open space, social facilities, civic amenities and infrastructure per living unit. The introduction of apartment rules, by itself does not have any provision to add these essential services and facilities within the existing built up environment. It will only add residential density while ignoring other urban infrastructure thereby being detrimental to the city environment and

49 will only lead to the long term decline of the city.

Keeping in mind these elements, it will be prudent to annul and negate any efforts to revive the Chandigarh Apartment Rules in its current form. This will not serve to create a large stock of available housing will not increase affordability. It will not serve MIG and LIG and will add to unplanned and unregulated growth of population density without any matching increase in social and physical infrastructure or amenities. The only beneficiary to this scheme will be a handful of developers which would be detrimental to the existing and future residents of the city. In conclusion, while there is an urgent requirement for increase of affordable housing stock in Chandigarh, the Apartment Rules is a poor and wholly inadequate instrument for this purpose.

The Board, therefore, recommends that all references in the draft Master Plan in respect of the reintroduction of 'Apartment Rules' should be deleted and redensification of any government residential/institutional pocket in Phase­I sectors should only be done with the prior approval of the Chandigarh Heritage Conservation Committee.”

60. It is thus clear that though an attempt was made in

the draft CMP­2031 to permit apartments on residential

plots, the same was vehemently opposed. The Report

50 considered the recommendations of the Heritage Committee

recommending that the northern sectors of Chandigarh

should be preserved in their present form as far as possible.

It has been recommended that no further enhancement

should be given in FAR. It also considered that the concept

of redensification in general will go against the heritage of the

city. It has further taken into consideration that the Heritage

Committee has taken a serious note of the relaxations in

FARs and building controls already given earlier and has

recommended that no further relaxation be given and has

also recommended that the relaxations already granted

should be revoked.

61. The said Board further considered that individual

development of apartments in plots will result in increase in

density in the areas of the city that are most profitable to the

developers rather than where these housing units are

required. It further considered that the introduction of the

2001 Rules will most essentially create apartments in the

higher cost bracket of saleable units and is unlikely to create

any low income or middle income housing. It considered that

51 the demand in the city is for lower income and middle­

income housing rather than housing for the rich and

affluent. It further considered that a situation like this will

predictably lead to proliferation of slums required to service

the higher density of highest income group people. It further

considered that the planning for support and supply of

infrastructure would not be sufficient to meet the growth in

population density on account of apartmentalization.

62. The said Board also considered that the introduction

of the 2001 Rules would lead to further increase in real

estate prices. It considered that this will be in stark

contradiction to the original aspect of creating more

affordable housing, whereby the character of the city will be

lost, and the gains will also not be significant. It considered

that Chandigarh is today known throughout the world for

being one of the best planned urban environment, due to the

high proportion of open space, social facilities, civic amenities

and infrastructure per living unit. It considered that the

introduction of the 2001 Rules by itself does not have any

provision to add these essential services and facilities within

52 the existing built­up environment. It stated that this will

only add residential density while ignoring other urban

infrastructure thereby being detrimental to the city

environment, and will only lead to the long­term decline of

the city.

63. It could thus be seen that the Report clearly opposed

reintroduction of the 2001 Rules. The Report has been duly

accepted and all references regarding re­introduction of the

2001 Rules have been deleted in the Final CMP­2031, which

was notified on 23rd April 2015.

VIII. CHANDIGARH MASTER PLAN­2031:

64. Clause 1.2 of the CMP­2031 would reveal that the

original plan of Phase­I divided the city into a grid of 30

sectors with the Capitol Complex as well as the Civic Centre.

Sector 17 was designed as the Central Business District. It

provided that, the greenbelt at the centre ran north east to

south east. Wide roads were planned in a systematic

hierarchy providing structure to the city which has well

planned facilities. Landscaped green avenues give it amenity

value. It states that the First Phase which is considered as

53 city’s Historic Core was designed for population of 1,50,000

in low rise plotted development. Phase­II from Sectors 31 to

47 for the remaining targeted 3,50,000 was with 4­storeyed

apartments for government employees with an increase in the

ratio of smaller plots/lesser open areas/nearly four times

increase in density. Though there is a reference that the

original concept itself included redensification of Phase­I, no

details with regard to the same were available.

65. A perusal of the CMP­2031 would reveal that while

finalizing the CMP­2031, the Expert Committee took into

consideration the preservation of original concept of the plan,

maintaining the basic character of the town, preserving

ecology and environment, heritage status of the city,

promoting sustainable urban development etc. The Expert

Committee also took into consideration the Report of the

Heritage Committee constituted by the Government of India

under the chairmanship of His Excellency, the Administrator,

UT Chandigarh and the approved letter of the Government of

India dated 23rd December 2011.

54

66. Clause 1.9 of the CMP­2031 provides the guiding

principles for comprehensive CMP­2031. Clause (v) thereof

states that Chandigarh’s architecture shall preserve the

vitality of all public and private buildings. Public open

spaces shall be created as vibrant community spaces, and

the left­out monuments envisaged by Le Corbusier shall be

completed. Urban design shall be the guiding principle for

improving the quality of inner and outer spaces. It also

considers that one of the challenges for Chandigarh was the

high degree of traffic congestion.

67. Clause 1.12 of the CMP­2031 would reveal that

Chandigarh has a universally acclaimed rich ‘Heritage’ and

‘Green City’ character.

68. Clause 4.5 of the CMP­2031 states the salient

features of the Chandigarh Plan. It states that the function

of Living occupies primary place and has been organized into

a cellular system of sectors based on the concept of a

neighbourhood unit. Each sector, with the exception of some

sectors, has a size of 800m × 1200m which was determined

on the parameter of providing all amenities, i.e., shops,

55 schools, health centres and places of recreation and worship

within a 10­minute walking distance of the residents. The

originally planned population of a sector varied between 3000

and 20,000 depending upon the size of plots, the topography

of the area, and the urban design considerations. Each

sector is introvert in character and permits only four

vehicular entries into its interior to provide a tranquil and

serene environment conducive to the enrichment of life. It

also emphasized on family life and community living. It

states that Chandigarh is planned as a green city with

abundance of open spaces. It ensures that every dwelling

has its adequate share of the three elements of Sun, Space

and Verdure. The location of green belt was in the north­

south direction to link all sectors with the Shivalik range of

hills/mountains. The city was planned as a low­rise city and

even after sixty years of its inception, it still retains the

original concept to a large extent.

69. Clause 5.3 of the CMP­2031 deals with density. It

states that the population density during the last five

decades has increased 9 fold, from 1051 to 9252 persons per

56 sq. km. It states that Chandigarh shall continue to record

higher densities with further population growth, which poses

a challenge for maintaining the quality of life and providing

basic and essential services even to its poorest residents as

visioned by the city’s planners.

70. Clause 5.3.2 of the CMP­2031 states that though

Phase­I was planned to be low density development with

9000 acres of land housing 1,50,000 population, i.e., the

density of 16 persons per acre, as per 2001 Census, it was 26

persons per acre. It states that by the year 2001, the density

of Phase­I had already exceeded the designed density

whereas that of Phase­II sectors was the same as was

designed. It states that the city still has reasonable capacity

to accommodate additional population. It further states that

the density pattern is likely to undergo considerable change

in the years to come with the city recording higher growth

and development. As per the existing trends, the sectors

falling in Phase­I shall continue to have lower density as

compared to the sectors falling in Phase­II.

57

71. Clause 5.7.4 of the CMP­2031 deals with the holding

capacity of UT Chandigarh based on Master Plan

recommendations. It specifically states that in order to

maintain the basic character of the city as an administrative

city, unnecessary increase in the population should be

avoided. It states that with the coming up of new towns in

the periphery of Punjab and Haryana, the excess population

can be easily accommodated in those towns. It states that

since the land stock in Chandigarh is limited, the uses

related to governance and administration should get priority

in the allocation of land. It states that additional population

will have to be diverted to the adjoining settlements by

viewing the entire context of planning in the regional

framework. However, the table in the said clause, dealing

with private plots, shows the total units to be 22,788 and

number of dwelling units as triple this number, at 68,364.

72. Clause 6.3 of the CMP­2031 deals with private

housing. It states that nearly 1/3 rd of the private plots have

an area of one kanal or above. It states that the first phase

of the city had low density with residential plots ranging from

58 5 marlas to 8 kanals. The second Phase has much higher

density with a switch mostly to three to four storey flats with

the largest plot size being 2 kanals.

73. It will be pertinent to refer to the relevant parts of

Clause 6.12 of the CMP­2031, which read thus:

“6. HOUSING IN CHANDIGARH ………..

6.12 MASTER PLAN PROPOSALS ………..

Approval of the Chandigarh Heritage Conservation Committee

Since Phase I sectors have been recommended for Heritage status, the re­utilization of the identified housing /institutional pockets in the first phase shall be undertaken with the prior approval of the Chandigarh Heritage Conservation Committee.

………..

ADDITIONAL FAR AND GROUND COVERAGE TO PRIVATE HOUSING The Chandigarh Administration vide notification dated 16/10/2008 has already permitted increased ground coverage and FAR for all sizes of private residential plots and introduced the concept of zoning in place of frame control. Under these regulations, all private plots can build upto 3 floors with each floor having potential of having an independent unit. There are approximately 23000 private plots of all categories within the sectoral grid of the Chandigarh Master Plan. Assuming that each plot will eventually be built upto 3 storeys with one unit per floor, the total dwelling units available will

59 be 69000 which can house approximately 3,00,000 population.”

74. Clause 19.1 of the CMP­2031 considered the major

recommendations, some of which include thus:

“19 CHANDIGARHS HERITAGE ……… 19.1 THE MAJOR RECOMMENDATIONS INCLUDE

1. The city’s monumental architecture, principles of town planning of Sun, Space, and Verdure, as enunciated by Le Corbusier, along with urban design, landscaping, honesty in the use of construction materials, like shuttered concrete and exposed brick­work, ought to be preserved as Modern Heritage of Universal Value for which Chandigarh has become known throughout the world.

2. A holistic approach towards protection, preservation, and maintenance of heritage buildings and unique characteristic of the city should be adopted.

3. The philosophy, plans and approach envisioned by Pandit Jawahar Lal Nehru with regard to the new city should not be lost sight of and kept in mind while taking the steps for the above purposes.

4. The philosophy, plans and designs propounded and used by Le Corbusier, while building the city, should not be allowed to be affected and should be kept in mind while protecting preserving, maintaining and expanding heritage structures.

60 5. Efforts should be directed to retain the essence of the original Plan of the city and as such the following is recommended:

₋ Chandigarh shall remain an Administrative City. ₋ Chandigarh shall retain the essential planning postulates of Sun, Space, and Verdure. ₋ Chandigarh shall be a Low­Rise City. ₋ Chandigarh shall be a Green City.

6. Corbusian Chandigarh title to the first phase of the city which is the most representative of Le Corbusier's thought and philosophy is truly worthy of recognition for its Modern Heritage Value. The sectors 1 to 30 planned and detailed out by the original team in fulfillment of the CIAM principles of Living, Working, Care of Body and Spirit and Circulation.

7. Heritage status to Sector 22, built as the first typical sector on the concept of the neighbourhood and Heritage status to Sectors 7 and 8 as a tribute to the architect planner, Albert Mayer.

No development must be allowed that may jeopardize their original concept.

8. Preservation of the concept of a neighbourhood unit, no further enhancement in FAR, supplementing the V7s with an efficient public transport system, execution of the pedestrian footpaths and cycle tracks, augmenting parking spaces in the city, development of villages and slum rehabilitation, regular upkeep.

9. The Committee has also made recommendations for a Master Plan for Chandigarh to ensure regulated development of the city’s Inter State Regional Plan and

61 mechanism for its implementation, City Development Plan, Solar City, restoring the city’s strong imageability, Urban Design, restoration of Architectural Control/Frame Control, Design, Advertisement Control Order.

10. Revitalization of the City Centre, construction of the Eleven Storied Tower.

11. Holistic planning of Capitol Complex to address immediate and future requirements, no scope for additional buildings within campus completion of the incomplete projects of the Capitol Complex, including the Museum of Knowledge, the Martyrs’ Memorial, revitalization of the plaza, campus lighting and illumination to highlight building edifices, addressing the security issues to enable comfortable visitor access to the Capitol Complex. The concern of development on the North of Chandigarh and the peripheral areas around the Capitol Complex.

12. Redensification of pockets of Government Housing The concept of Redensification has not been recommended in the Master Plan.

Instead pockets identified by the Expert Heritage Committee have been recommended for Reutilisation if required. (see Chapter on Housing).

13. Prior Concept Approval for identified private and Government buildings with the principal objective to maintain a harmonious urban form of Chandigarh and in keeping with its original concept, Prior Concept Approval of new buildings and/or additions­and­ alterations in old ones of identified private and government properties has been recommended. Following are the parameters for imposing the regulation of prior concept approval:­

62  Since many private buildings fall along important arteries, namely, V3s and V4s, constituting major part of Chandigarh’s urban imageability, there is an urgent need to regulate individualistic/idiosyncratic use of weird forms, senseless geometry, garish colours and unaesthetic materials to preserve the original character of the city besides retaining sanity in architectural and urban designs.

 The second criterion is the building’s architectural importance and the individual professional standing of the architects who constituted the foreign team of architects.

 The third parameter is the location of the building, which is crucial because an ill­ designed structure can become an eyesore whereas a sensitive design that respects its architectural legacy would be a landmark asset in many ways.

 Similarly, the development/additions and alteration of green belts should be done sensitively and in the same spirit as that of the original plant.

 Location of Mobile Towers is very important from the urban design point of view and as such, this too has been recommended for prior concept approval.

14. Constitution of the Chandigarh Heritage Conservation Committee.

15. Restoration and preservation of building materials – Concrete & Brick buildings.”

63

75. Clause 19.11 of the CMP­2031 talks about the

inclusion of Chandigarh in the UNESCO World Heritage List

due to its outstanding universal value. It will be relevant to

refer to the said recommendations, which are thus:

“19.11 INCLUSION OF CHANDIGARH IN THE UNESCO WORLD HERITAGE LIST DUE TO ITS OUTSTANDING UNIVERSAL VALUE RECOMMENDATION OF THE MASTER PLAN COMMITTEE It has been perceived that Chandigarh’s inscription on World heritage list would bring many benefits as the city would join a select list of other modern movement cities/urban areas currently inscribed on the UNESCO’s heritage list.

A UNESCO heritage status shall bring about a boost to domestic and international tourism and related benefits to the city’s economy and build public awareness about the values of Chandigarh’s unique modern heritage.

It will not only ensure protection of significant heritage buildings and areas from neglect, willful destruction, defacement, inappropriate alterations but will also provide for preparation of a comprehensive urban development plan which respects international heritage conservation criteria, is environmentally sustainable and also handles the future developmental needs of the city. The move was intended to train our officials for technologically appropriate repair and conservation of heritage buildings.

CHANDIGARH SHOULD MAKE CONCERTED EFFORTS FOR WORLD HERITAGE STATUS IN CONSULTATION WITH THE MINISTRY OF HOME

64 AFFAIRS AND THE ARCHEOLOGICAL SURVEY OF INDIA.”

76. It will also be relevant refer to Clause 20.3 of the

CMP­2031, which reads thus:

“20.3 AN EFFECTIVE ENVIRONMENTAL MANAGEMENT PLAN FOR CHANDIGARH AND FOR THE REGION It is recommended that an Effective Environmental Management Plan be devised for the region including Chandigarh which includes environmental strategy, monitoring regulation, institutional capacity building and economic incentives. The proposal needs a legal framework and a monitoring committee to examine the regional level proposals/ big developments by Constitution of an Inter State high powered “Regional Environmental Management Board” as per the proposal of Ministry of Environment and Forests, Government of India.”

77. A perusal of various clauses in the CMP­2031 itself

would reveal that the CMP­2031 emphasizes on maintaining

monumental architecture and principles of town planning

concept of Sun, Space, and Verdure, as enunciated by Le

Corbusier. It also emphasizes that Corbusier’s Chandigarh,

i.e., Phase­I of the city, which is the most representative of Le

Corbusier’s thought, is truly worthy of its modern heritage

65 value. In spite of observing this, it states that eventually

three storeys with one dwelling unit per floor would be

constructed on these plots.

IX. CONSIDERATION OF CITED CASES:­

78. The provisions of Rule 14 of the 1960 Rules as well

as Rule 16 of the 2007 Rules fell for consideration in some

matters before this Court as well as before the High Court.

79. The learned Single Judge of the High Court in the

case of Chander Parkash Malhotra (supra) considered a

dispute with regard to House No. 50, Sector 10­A,

Chandigarh, which, on the death of the original owner, was

inherited by his sons and daughters. Some of the legal heirs,

i.e., brothers and sisters of Chander Parkash filed a suit for

partition of the property in which a preliminary decree came

to be passed by the trial court on 30th September 1983. In

appeal, the learned District Judge modified some of the

findings recorded by the trial court. Thereafter, the

proceedings for passing of the final decree were taken up by

the trial court. A Local Commissioner was appointed to

suggest the mode of partition, who submitted his report on

66 7th February 1989. The petitioner therein, Chander Prakash,

raised his objections to the said report. The said objections

were rejected by the trial court. The report of the Local

Commissioner was to the effect that the property in dispute

cannot be partitioned by metes and bounds. The order of the

trial court came to be challenged before the High Court by

way of revision. In the revision, the validity of Rule 14 of the

1960 Rules was also challenged. The learned Single Judge,

vide its judgment dated 22nd February 1991, held Rule 14 of

the 1960 Rules being ultra vires to the Constitution of India

and also beyond the powers of the rule­making authority.

80. The said judgment of the learned Single Judge came

to be challenged by the Chandigarh Administration before

this Court in the case of Chandigarh Administration

(supra). It will be relevant to refer to Ground ‘G’ of the said

appeal, which reads thus:

“G. That the Punjab Capital (Development and Regulation) Rules are framed under Section 22 of the Punjab (Development and Regulation) Act, 1952. The provisions of Section 22 are constitutional and do not suffer from any excessive delegation of legislative power. It specifically provides that the rules shall be made for carrying out the purposes of the Act and further lays down the subject matter 67 which the rules have to provide. The aims and objects with which the Act is enacted is to vest in the State Government the legal authority to regulate the sale of building sites and to frame building rules on the pattern of Municipal Bye­laws and for the planned development of the town. The entire Act was purposefully directed to provide a reasonable social control of the urbanization visualized by the creation of an altogether new capital city for the State from scratch. The pre­eminent ideas underlying the same were:­

(i) The need and incentive to create an altogether new places where non existed.

(ii) That too within the shortest possible time, and

(iii) Further to ensure that it conformed to an ideal concept of a planned city as against the haphazard urbanization of the mushroom growth of slums which in the ultimate analysis can even strangulate an existing town to extinction. It was to effectuate these purposes that the rules have provided a ban on fragmentation of sites and hence is a reasonable restriction on the right of property.

Keeping in view the object and the preamble of the Act and the Rules framed thereunder, the same have to be viewed din a broader prospective. The fundamental right under Articles 14 and 19 of the Constitution are not absolute rights. The Constitution itself has imposed reasonable restrictions on its exercise in the interest of general public.

Consequently, the restriction imposed by Rule 14 in furtherance of the object of the Act has to be judged as a reasonable restriction.”

68

81. This Court, vide order dated 24 th November 1992

passed in the case of Chandigarh Administration (supra),

observed thus:

“Leave granted.

In the present case, the respondents did not want the partitioning of the plot by metes and bounds. All that they wanted was the partitioning of the building and additions and alterations therein to make separate living units in the same building. Even this partition as well as addition was to be done by them with the approval of the Chandigarh Administration according to its building bye­laws. Since no fragmentation of any site including the building was involved, there was no question of the violation of rule 14 of the Chandigarh Administration (Sale of Sites and Buildings) Rules, 1960.

In the circumstances, it was not necessary to declare rule 14 invalid as the High Court has done. To that extent, we set aside the order of the High Court.

It is made clear that the respondents before partitioning the building or making additions and renovations in the same will take permission of the Chandigarh Administration according to law. The appeal is disposed of accordingly. There shall be no order as to costs.”

82. This Court specifically set aside that part of the

judgment of the High Court which had held Rule 14 of the

1960 Rules to be unconstitutional. It could also be seen

69 that, in the said case, the dispute was amongst the legal

heirs of the original allottee.

83. It appears that, frustrated by the litigation, the

brothers and sisters of Chander Parkash sold the property to

R.B. Chahal and Mrs. Sukhraj Chahal. The final decree

proceedings reached up to the High Court by way of second

appeal in the case of Sh. Chander Parkash Malhotra v.

Sh. R.B.S. Chahal13. An application was made by R.B.

Chahal and Mrs. Sukhraj Chahal for their impleadment since

they had purchased shares of co­owners. The learned Single

Judge, while disposing of second appeal vide its judgment

dated 1st December 1993, observed thus:

“6. As already noticed above, property cannot be partitioned according to bye­laws. The only alternative left is that the parties be permitted to bid among themselves and whosoever gives the highest bid, be allowed to purchase the property. In case this mode is not acceptable, the trial court should determine the market value and given option to the appellant to purchase the share of the added respondents. In case he fails to do so within the time that the trial court may allow for the purpose, the added respondents be allowed to pay the price of the share of Chander Prakash­appellant.”

13 1993 SCC OnLine P&H 1179 70

84. In the case of Tilak Raj Bakshi (supra), the

property situated in Chandigarh was owned by one Kripa

Ram Bakshi. He had executed a registered will on 4 th

September 1974 in favour of the plaintiff, the first defendant

and another son who was the 3rd defendant in the suit. The

disputed house was transferred in favour of the aforesaid

three persons by the Estate Officer. The plaintiff had filed a

suit claiming that in view of an agreement between the three

brothers namely himself, the first defendant and the younger

brother, the third defendant, without the concurrence of the

plaintiff, the first defendant could not have sold the suit

scheduled property to the second defendant. The second

defendant, who was not a part of the family, contended that

the plaintiff did not have any preferential right and that he

was a bona fide purchaser. The trial court found that the

plaintiff was entitled to specific relief and declared the sale

unit as null and void. The second defendant appealed

against the said judgment of the trial court. The appeal of the

second defendant was dismissed by the Appellate Court. The

Appellate Court also allowed the cross­appeal filed by the

plaintiff and directed the second defendant to handover 71 possession to the plaintiff. However, the High Court allowed

the second appeal, and the civil suit filed by the plaintiff was

dismissed. The matter thereafter reached this Court.

85. This Court considered the arguments advanced on

behalf of the plaintiff that the same would result in

contravention of the 1960 Rules made under the 1952 Act.

This Court, further considering certain provisions of the 1952

Act, observed thus:

“59. From a perusal of the aforesaid provisions, it becomes clear that the word “site” means any land which is transferred under Section 3 of the 1952 Act. When it comes to the terms of Section 3, it contemplates power with the Central Government to transfer by auction, allotment or otherwise any land or building belonging to the Government in Chandigarh on such terms and conditions as may subject to any Rules that can be made under the Act, the Government thinks fit to impose. Thus, though it is open to the Central Government to transfer either land or building belonging to the Government in Chandigarh under Section 3 of the 1952 Act, the word “site” is confined to only the land which is transferred by the Central Government under Section 3. In fact, the word “building”, as defined in the Act, points to any construction or part of construction which is transferred under Section 3. It includes outhouse, stable, cattle shed and garage and also includes any building erected on any land transferred by the Central Government. The construction must be intended to be used for residential, commercial, industrial or any other purposes. A clear distinction is maintained between “site” and “building”. The 72 Chandigarh (Sale of Sites and Buildings) Rules, 1960 came to be made. Section 22 of the 1952 Act confers power upon the Central Government to make the rules for various purposes, which are mentioned in sub­section (2). It includes Sections 2(a), 2(d), 2(e) and 2(h) of the 1952 Act, which read as follows:

“22. (2)(a) the terms and conditions on which any land or building may be transferred by the Central Government under this Act;

***

(d) the terms and conditions under which the transfer of any right in any site or building may be permitted;

(e) erection of any building or the use of any site;

***

(h) the conditions with regard to the buildings to be erected on sites transferred under this Act;””

86. After reproducing Rule 16 of the 2007 Rules, this

Court observed thus:

“61. It is on the strength of the provisions contained in Rule 14 of the 1960 Rules and Rule 16 of the 2007 Rules that the appellant would argue that the assignment of the share of the first defendant occasioned a breach of the law. The second defendant, on the other hand, would point out that there was no issue of fragmentation ever raised before the courts and the same was not decided in the courts.

62. It is contended by the second defendant that the sale deed in favour of Respondent 1 specifically says that the sale is in respect of one­third share in the residential House No. 13 of Sector 19­A, 73 Chandigarh. After the sale deed, it is contended, one­third share of the party was duly transferred and mutated in the name of Respondent 1­second defendant by the Chandigarh Administration. The High Court, in fact, tides over this objection by the appellant by pointing out that once the second defendant steps into the shoes of the first defendant, he became a co­owner and his remedy is to sue for partition and while fragmentation of property, is not “admissible”, the market value of the property can be determined, and buying each other's share, as per the provisions of Sections 2, 3 and 4 of the Partition Act, 1893.

63. While it may not be true that the issue of fragmentation was not raised in the courts, we would think that the appellant is not able to persuade us to hold that the assignment in favour of the second defendant is vulnerable on the basis that it involves fragmentation. We have noticed the deposition of the plaintiff about partition of the house into three portions. We have noted the fact that one­third share has been duly transferred and mutated in the name of the first respondent­second defendant by the Chandigarh Administration.”

64. The second defendant has produced the communication dated 19­12­1997 which indicates the transfer of rights of site in Sector 19­A held by Vishnu Dutt Mehta (first defendant) is noted in favour of the second defendant subject to certain conditions. This is obviously before the 2007 Rules came into force.

65. In the light of the aforesaid facts, we cannot permit the appellant to impugn the transaction on the said ground.”

74

87. It could thus clearly be seen that, in the said case

also, the property was bequeathed to plaintiff, the first

defendant and another brother who was the third defendant.

The second defendant had purchased the property from the

first defendant and as such, he became a co­owner. The

Court found that the assignment in favour of the second

defendant was not vulnerable on the basis that it involved

fragmentation. However, it also noted the deposition of the

plaintiff about partition of the house into three portions. It

also noted that the 1/3rd share had been duly transferred

and mutated in the name of the first respondent/second

defendant by the Chandigarh Administration. It also noted

that the transfer of rights of site in Sector 19A held by the

first defendant was duly noted in favour of the second

defendant subject to certain conditions on 19 th December

1997. It noted that this was obviously before the 2007 Rules

came into force.

88. In another second appeal before the High Court in

the case of Arvind Kapoor v. Kumud Kapoor and

Another14, again there was a dispute between three siblings

14 Regular Second Appeal No. 1562 of 2012 dated 28.05.2019 75 – a brother and two sisters. The dispute was with regard to

House No. 2174, Sector 44­C, Chandigarh. The sisters had

relied on the family settlement dated 13 th June 2000. Arvind

Kumar filed a suit seeking a declaration that the family

settlement dated 13th June 2000 was obtained by fraud and

as such, not binding on him. One of the sisters namely

Sangeeta Chopra sought a declaration that she was the

owner of the first floor of the said house and that she be

given possession of the said property along with mesne

profits/damages, as the brother Arvind Kapoor had illegally

occupied the same. The other sister also supported the claim

of Sangeeta Chopra. With regard to scope of Rule 14 of the

1960 Rules, the learned Single Judge vide its judgment dated

28th May 2019, observed thus:

“29. …. Yet, even if it were to be presumed that a purely legal question can be raised even at this stage, with this Court itself to decide on it as a substantial question of law, I would hold that as a matter of fact legal partition of the suit property has not been sought by respondent Sangeeta Chopra once she withdrew her claim to ownership of the first floor thereof because of the statutory bar on such partition. Seeking possession of a particular floor of the property, in terms of the family settlement reached voluntarily between the parties, would not legally amount to partial partition,

76 especially in the face of the fact that such partition in any case is statutorily barred by the aforementioned rule, i.e., Rule 14 of the Chandigarh (Sales of Sites and Buildings) Rules, 1960. It is to be specifically noticed that the applicability of the said rule or the enactment under which the rules have been promulgated, is not denied by either party.

Further, as noticed above, there is no statutory bar on possession/occupation of individual floors, as long as joint ownership is not partitioned.”

89. It thus appears that Sangeeta Chopra withdrew her

claim to ownership of the first floor of the property because of

the statutory bar on such partition and restricted her claim

for seeking possession of a particular floor of the property in

terms of the family settlement. The High Court therefore held

that the same would not legally amount to partial partition. It

held that there is no statutory bar on possession/occupation

on individual floors, as long as joint ownership is not

partitioned.

90. It is thus clear that all the aforesaid cases arose out

of the dispute between the legal heirs of the original allottee,

who became co­owner of the property on the demise of

original allottee. Whenever any share of co­owner was sold to

77 an outsider, it was held that such a purchaser stepped into

the shoes of one of the co­owners and as a co­owner, he was

entitled to the share of the property.

91. Insofar as the case of Tilak Raj Bakshi (supra) is

concerned, this Court has specifically observed that the

rights of the first defendant were already transferred in

favour of the second defendant prior to the 2007 Rules

coming into force.

X. CONSIDERATION OF ISSUES:

92. Permitting co­owners of a building and site to occupy

a particular part of the building as per the family

arrangement/settlement, is a matter totally different than

permitting construction of a building, which would have

three apartments, and then selling the same to three different

persons.

93. It is relevant to note that the 2001 Rules had

introduced the concept of apartments in the city of

Chandigarh. The said Rules permitted sub­division of a

building duly recognized by the Estate Officer. Each sub­

division of a building was recognized as a distinct, 78 identifiable property to which the owner/lessee had title

along with the proportionate right in the declared common

areas and common facilities. The 2001 Rules also permitted

any residential building situated on a residential plot to be

sub­divided into separate dwelling units, with not more than

one dwelling unit on each floor.

94. Since the citizens of Chandigarh opposed

apartmentalization, the 2001 Rules came to be repealed on

1st October 2007. Immediately thereafter on 7 th November

2007, the 2007 Rules came to be notified. Rule 16 of the

2007 Rules specifically prohibited fragmentation of a site or

building. Although fragmentation of any site could be

allowed, if such fragmentation was permitted under any

scheme notified by the Administration; admittedly, no such

scheme is notified. As such, the effect is that though a

building was permitted to be converted into apartments

between the year 2001 and 2007, the same is not permitted

after the year 2007.

95. When the draft CMP­2031 was published, it was

proposed to re­introduce the 2001 Rules, through which sub­

79 division of residential plots of 1000 sq. yards and above into

two dwelling units on each floor was to be permitted. The

residential buildings on plots of less than 1000 sq. yards

were to be permitted with floor­wise sub­division into

separate dwelling units with not more than one dwelling unit

on each floor of the building. The said Board was constituted

to consider the objections/suggestions to the draft CMP­

2031. The said Board considered various aspects such as

recommendations of the Heritage Committee, which were

accepted by the Government of India. It also considered

recommendations of the Heritage Committee that the

northern sectors of Chandigarh (Corbusian Chandigarh)

should be preserved in their present form as far as possible,

that no further enhancement should be given in FAR. The

said Board considered that the concept of redensification in

general would go against the heritage of the city.

96. The said Board also considered that individual

developments of apartments in plots will result in increase in

density in the areas of the city that are most profitable to the

developers, rather than where these housing units are

80 actually required. It considered that introduction of the 2001

Rules will most essentially create apartments in the higher

cost bracket of saleable units, and is unlikely to create any

low income or mid income housing. It also considered that

the demand in the city was for lower income and middle­

income housing rather than housing for the rich and

affluent. It also considered that if the re­introduction of the

2001 Rules is permitted, it will lead to proliferation of slums

required to service the higher density of highest income

group people.

97. It is to be noted that one of the salient features of Le

Corbusier’s design was that the population density in the

northern sectors was to be low, which increases towards the

southern sectors. Chandigarh city has been planned as a

low­rise city and has been so developed that even after sixty

years of its inception, it retains its original concept to a large

extent.

98. One of the guiding principles that weighed with the

said Board was that Chandigarh had Heritage Value, and it

was important to preserve and maintain the integrity of the

81 original concepts and planning postulates of Sun, Space and

Verdure. Another principle that weighed with the said Board

was that any redevelopment in northern sectors (Phase­I)

should only be done keeping the recommendations of the

Heritage Committee in mind. Another guiding factor was

that the same practices as followed while developing the New

Delhi Municipal area (Lutyen’s Delhi) be followed in respect of

the city of Chandigarh. The architecture of the city was to be

preserved and retained in sync with Le Corbusier’s vision.

The low­rise character of the city needs to be maintained.

The recommendations of the said Board had been accepted

while notifying the CMP­2031.

99. It is important to note that the CMP­2031 itself

states that Phase­I Sectors have been recommended for

Heritage status, and that the re­utilization of the identified

housing/institutional pockets in the first phase has to be

undertaken with the prior approval of the Heritage

Committee. Having observed this at one place, it is difficult to

apprehend as to how, though the CMP­2031 observed that by

the year 2001 itself, the planned density of 16 per acre in

82 Phase­I has been exceeded, it estimated the holding capacity

to be 34 per acre. It also records that as per 2001 Census,

the density in Phase­I was 26 per acre.

100. The CMP­2031 thereafter observes that under the

regulations, all private plots can build up to three floors with

each floor having the potential of having an independent

unit. It further observes that there are approximately 23000

private plots of all categories within the sectoral grid of the

Chandigarh Master Plan. It assumes that each plot will

eventually be built upto 3 storeys with one unit per floor,

taking the number of dwelling units to 69000 approximately.

101. It also recognized that the “Corbusian Chandigarh”

title given to Phase­I of the city, which is the most

representative of Le Corbusier's thought and philosophy, is

truly worthy of recognition for its Modern Heritage Value. It

further records that Sectors 1 to 30 are planned and detailed

out by the original team in fulfillment of the CIAM principles

of Living, Working, Care of Body and Spirit and Circulation.

102. The CMP­2031 also recommends that concerted

efforts should be made for getting the world heritage status

83 for Chandigarh in consultation with the Ministry of Home

Affairs and the Archeological Survey of India. It also records

that it has been perceived that Chandigarh’s inscription on

the World heritage list would bring many benefits as the city

would join a select list of other modern movement

cities/urban areas currently inscribed on the UNESCO’s

heritage list.

103. It will be pertinent to note that in the appeal filed

before this Court in the case of Chandigarh

Administration (supra), which was filed by the Chandigarh

Administration challenging the judgment of the High Court

holding Rule 14 of the 1960 Rules to be unconstitutional, it

was specifically submitted that Rule 14 of the 1960 Rules

was enacted in order to restrict the further growth of

Chandigarh city. It had been submitted that the 1960 Rules

provide a ban on fragmentation of sites and as such, was a

reasonable restriction on the right of property. It is further to

be noted that even in the reply filed on behalf of the

Chandigarh Administration in the present proceedings before

the High Court, it had been averred thus:

84

“10. That the contents of paragraph 10 as stated are wrong and denied. The Chandigarh Administration does not permit a residential house to be converted into an apartment on account of the fact that "The Chandigarh Apartment Rules 2001" now stand repealed. However, the architectural controls and building bye­laws are of the highest standards, even otherwise the Estate Office maintains a strict vigil on the construction activities/ compliance of Rules and Building Bye­Laws in UT Chandigarh. Therefore, contrary to the claims of the petitioner, the character of Chandigarh is intact.

11. That the contents of paragraph 11 as stated are wrong and denied. However, there is no bar on alienation/transfer of a share in a property by a true owner, as it is permissible as per the provisions of the enactments and the recognized principles of civil law referred above. Therefore, an owner of a freehold residential house is permitted to sell his share or a part of the shares in the said house. It is further submitted that no floor wise sale of property is permissible under the Capital of Punjab (Development & Regulations)" Act, 1952. The contents of the preliminary objections as well as the preliminary submissions may also be read as a part and parcel of this paragraph.”

104. It can thus clearly be seen that Chandigarh

Administration has reiterated its stand that it does not

permit residential house to be converted into an apartment

on account of the fact that the 2001 Rules now stand

repealed. It however stated that there is no bar on

alienation/transfer of a share in a property by a true owner,

85 as it is permissible as per the provisions of the enactments

and the recognized principles of civil law. It is stated that an

owner of a freehold residential house is permitted to sell his

share or a part of the shares in the said house. However, it

is reiterated that no floor­wise sale of property is permissible

under the 1952 Act.

105. The Division Bench of the High Court, vide an

interim order dated 27th July 2021, reproduced the stand of

Chandigarh Administration. It also noticed that in the

subsequent affidavit dated 20th July 2021 of the Assistant

Estate Officer, Chandigarh, it was specifically deposed that

no sale of defined portion/plot of building is permissible, nor

any such sale has been recognized by the Chandigarh

Administration except those registered during the year 2001

to 2007 when the 2001 Rules were in vogue.

106. Since the Division Bench was seized of the matter, it

thought it was appropriate to scan through the

advertisements that were published in news dailies in the

recent past, having circulation in the city, so as to find out

whether any floor­wise sale of dwelling units is advertised. It

86 noticed that in the Sunday Tribune dated 25th July 2021

itself, as many as 24 advertisements were published inviting

the purchasers/investors to purchase independent floors. In

this order itself, the High Court has reproduced such

advertisements. After reproducing such advertisements, the

Division Bench observed thus:

“The afore­reproduced advertisement(s) lend credence to the assertion raised on behalf of the petitioners that under the garb of sale of certain percentage share of a residential unit independent floors are being sold.

We find that the written statement filed on behalf of the official respondents/ Chandigarh Administration as also the subsequent affidavit of the Assistant Estate Officer is totally silent on such aspect. In our view, the Chandigarh Administration ought to have been alive to such situation and particularly when there were specific averments made in the present petition which was filed way back in the year 2016. Being in a state of denial on paper would not suffice. In the fitness of things, the Administration should have carried out some kind of physical verification to ascertain as to whether such modus operandi had been resorted to after repeal of the Apartment Rules, 2001. Mr. Pankaj Jain, learned Senior Standing counsel on a specific query having been put, concedes that no such verification has been carried out.

We are constrained to observe that UT Administration has chosen to skirt a vital issue that has been raised in the instant petition. In view of the above we direct UT Administration to forthwith carry out an exercise whereby in the first instance the properties/buildings would be identified from 87 the office of the Estate Officer where the record of the rights is maintained wherein sale of share(s) be it to the extent of 50%, 30% or 20% has been sold/ transferred to a person outside the family of the original owner/ shareholder. The second step would be to carry out a physical inspection of such identified buildings/dwelling units to find out as to whether the sale of share(s) has actually translated into the buyer occupying an independent floor in the otherwise composite dwelling unit or to find out as to whether independent floors are in the process of being constructed commensurate to the share(s) that has been purchased in such dwelling unit. It would be open for the official respondents to seek the cooperation/ assistance of the concerned police authorities/law enforcement agencies to facilitate the carrying out of the physical inspection of the premises in question. We further direct that this entire exercise be carried out under the supervision of the Chief Architect, UT Chandigarh. To ensure that such exercise does not become overly time consuming and the object is only towards a fact finding exercise we are of the view that it ought to be a sample exercise. The same be confined from the date of filing of the instant petition till 31.12.2019. Still further the exercise to confine only with regard to residential buildings.”

107. It is thus clear that the Division Bench found that

the written statement filed on behalf of the Chandigarh

Administration as also the subsequent affidavit of the

Assistant Estate Officer, Chandigarh is totally silent on the

aspect of advertisements of sale of independent floors. It

88 observed that, Chandigarh Administration ought to have

been alive to such situation, and particularly when there

were specific averments made to that effect in the writ

petition which was filed way back in the year 2016. The

Division Bench observed that the Chandigarh Administration

should have carried out some kind of physical verification to

ascertain as to whether the aforementioned modus operandi

had been resorted to after the repeal of the 2001 Rules. The

High Court recorded the contention of the Senior Standing

Counsel on behalf of the Chandigarh Administration that no

such verification has been carried out. The Division Bench

thereafter issued a direction to the Chandigarh

Administration to forthwith carry out an exercise in two

steps. In the first step, the properties/buildings were to be

identified from the office of the Estate Officer where the

record of the rights is maintained wherein share(s) be it to

the extent of 50%, 30% or 20% has been sold/transferred to

a person outside the family of the original

owner/shareholder. The second step was to carry out

physical inspection of such identified buildings/dwelling

units to find out as to whether the sale of share(s) has 89 actually translated into the buyer occupying an independent

floor in the otherwise composite dwelling unit or to find out

as to whether independent floors are in the process of being

constructed, commensurate to the share(s) that has been

purchased in such dwelling unit.

108. It is thus clear that when the interim order was

passed on 27th July 2021, the Division Bench was conscious

of the fact that even according to the Chandigarh

Administration, it was not permissible to construct

apartments on the sites allotted and sell it to different

persons. It is informed that, in pursuance to the directions

of the High Court dated 27th July 2021, a survey was

conducted and it was found that 891 sites were converted

into three apartments each.

109. From the material placed on record, it appears that

the modus operandi that is devised by the developers is that

the allottee of the house would convey 50% of the share to

the first purchaser, 30% to the second purchaser and 20% to

the third purchaser. Thereafter, all the three purchasers

would enter into either a settlement deed or a Memorandum

90 of Understanding (MoU) under which the party having 50%

share of the house is entitled to the entire ground floor with

basement including the back courtyard but excluding the

front courtyard and the staircase. The second purchaser

having 30% share in the house would be entitled to the entire

first floor excluding the staircase. The third purchaser

having 20% share of the house would be entitled to the entire

second floor including the roof of the second floor but

excluding the staircase.

110. It will be relevant to refer to the recitals in one of

such settlement deeds executed on 2 nd May 2013, which read

thus:

“Whereas as per the present rules of the Estate Office it could not been mentioned in the Sale Deed that the possession of which floor/portion/area has been given to the purchaser so this MOU has been executed between the parties to avoid any future misunderstanding/litigation among all the co­ owners of the said house in respect of their respective possession in the said house in lieu of their respective shares in the said house so this MOU has been executed between the parties and all the parties have agreed with each other on the following terms and conditions.”

111. It is thus clear that, the parties who entered into

such an MoU, were conscious of the fact that as per the

Rules of the Estate Office, it could not be mentioned in the 91 sale deed that the possession of particular floor is given to

the purchaser. It asserts that the MoU has been executed

between the parties to avoid any future

misunderstanding/litigation amongst all the co­owners of the

said house in respect of their respective possession in the

said house in lieu of their respective shares in the said

house.

112. It will also be relevant to refer to Clause 12 of the

said Settlement Deed dated 2nd May 2013, which reads thus:

“12. That from now on all the parties shall hereafter peacefully hold, use and enjoy their respective portions as their own property without any hindrance, interruption, claim or demand whatsoever from each other. But as the parties are owners of different portions in one common house, they will be dependent upon each other in many ways in their day to day lives. So they should try to co­exist amicably with each other as brothers and sisters and family members, always keeping in mind the necessities, comforts, rights and feelings of each other and try to sort out any differences, discomforts and dissatisfactions in a peaceful and dignified manner.”

113. It is thus clear that the MoU clearly states that all

the parties, after entering into such a document, would

peacefully hold, use and enjoy their respective portions as

their own property without any hindrance, interruption,

92 claim or demand whatsoever from each other. No doubt, it

states that since the parties are owners of different portions

and would be dependent upon each other in many ways, they

should try to co­exist amicably with each other as brothers

and sisters and family members.

114. According to the High Court, the said does not

amount to fragmentation, which is prohibited by Rule 16 of

the 2007 Rules. The High Court has held that fragmentation

will take place only where there is a division of the plot or

division of the building with an element of exclusive

ownership that is by partition by metes and bounds.

115. It will be relevant to refer to the meaning of

“fragment” and “fragmentation”, as per Webster’s

Encyclopedic Unabridged Dictionary of the English

Language, which reads thus:

“Frag.ment (frag’ment), n. – 1. a part broken off or detached: scattered fragments of rock. 2. a portion that is unfinished or incomplete: Fragments of his latest novel were penciled in odd places. 3. an odd piece, bit, or scrap. – v.i. 4. to disintegrate; collapse or break into fragments: The chair fragmented under his weight. – v.t. 5. to break (something) into pieces or fragments; cause to disintegrate: The vase was fragmented in shipment. Outside influences

93 soon fragmented the culture. 6. to divide into fragments; disunify. [ME < L fragment (um) a broken piece, remnant, equiv. to frag – (s. of frangere to break) + ­ mentum – MENT]

Frag.men.ta.tion (frag’men’ta’shen), n. – 1. act or process of fragmenting; state of being fragmented.

2. the disintegration, collapse, or breakdown of norms of thought, behavior, or social relationship.

3. the pieces of an exploded fragmentation bomb or grenade. [FRAGMENT + ­ ATION]”

116. A perusal of the aforesaid clauses from the

settlement deeds, which have been reproduced hereinabove,

it is clear that the understanding between the parties is that

they are independent owners of different floors. It would also

reveal that as per their understanding also, the present Rules

of the Estate Office, would not permit to mention in the sale

deed that the possession of which floor/portion/area has

been given the purchaser. In any case, what is to be found is

the real intention behind the transaction. When the

transaction clearly shows that it is being entered into for the

purpose of constructing three different apartments on each

floor and also mentions that the same is not permissible

under the existing rules, the intention of the parties is to

construct three different units which are disintegrated. This 94 is nothing else but fragmentation. In our view, it is an

attempt to by­pass the statutory prohibition.

117. It will also be relevant to refer to an undertaking

which the owner is required to furnish in an application for

obtaining the occupation certificate:

“UNDERTAKING OF OWNER ……….

6. I/We do hereby certify that buildings will be used for residential purposes as per allotment letter and its use will not be changed or converted into Apartments without obtaining written permission from the competent authority.”

118. The application which is to be made in the said

format is still in vogue. In the teeth of such an undertaking

and the specific stand of Chandigarh Administration that it

does not permit construction of apartments, it is difficult to

appreciate as to how building plans have been sanctioned

which ex­facie show that they are nothing else but

apartments.

119. It is thus clear that the modus operandi of the

developers is, in effect, resulting into apartmentalization of

the buildings. What is not permissible in law after the repeal

95 of 2001 Rules on 1st October 2007, and enactment of Rule 16

of the 2007 Rules, is indirectly being permitted under the

guise of sale of shares and subsequent MoUs. It is also to be

noted that though an attempt was made in the draft CMP­

2031 to reintroduce the provision for apartments, after

considering the objections, it was decided to delete the same

from the final CMP­2031. As already stated hereinabove, on

account of such transactions, number of sites have been

purchased through the aforesaid modus operandi; buildings

were demolished and three apartments were constructed

thereon.

120. The High Court in the impugned judgment though

holds that it is not permissible to construct apartments in

view of repeal of the 2001 Rules, goes on to hold that the said

would not amount to apartmentalization, inasmuch as there

is no sub­division of a building duly recognized by the Estate

Officer along with the proportionate share in common areas

and common facilities. It holds that by virtue of sale of

share(s) by a co­owner and thereafter, the purchaser/vendee

occupying a specific portion of the building on the basis of an

96 internal arrangement/understanding, “sub­division of

building” as contemplated under the 2001 Rules does not

take place. In our considered view, the said reasoning is not

sustainable in the teeth of Rule 16 of the 2007 Rules.

121. If the reasoning which is adopted by the High Court

is to be accepted, then it will lead to a situation wherein, as

aforementioned, what is not directly permissible in law, is

being indirectly permitted. Therefore, in our view, the

reasoning of the High Court would not be tenable in law.

122. As stated hereinabove, the CMP­2031 itself states

that since Phase­I Sectors have been recommended for

heritage status, the re­utilization of the identified

housing/institutional pockets in the first Phase has to be

undertaken only with the prior approval of the Heritage

Committee. Even in the report of the said Board, it has been

specifically stated that the Heritage Committee has

recommended that northern sectors of Chandigarh

(Corbusian Chandigarh) should be preserved in their present

form as far as possible. It is also stated that general

redensification is not recommended. It has considered that

97 the Heritage Committee has taken a serious note of the

relaxations in FAR and building controls already given earlier

and has recommended that no further relaxation be given

and has also recommended that the relaxations already

granted should be revoked.

123. This Court in the case of Bangalore Medical Trust

v. B.S. Muddappa and Others15, while considering the

provisions of Bangalore Development Authority Act, 1976,

has considered an issue with regard to deviation from duly

sanctioned scheme thereby sacrificing the public interest in

the preservation and protection of environment. It will be

apposite to reproduce certain observations made in the

aforesaid judgment, which read thus:

“18. ….…Any unauthorised deviation from the duly sanctioned scheme by sacrificing the public interest in the preservation and protection of the environment by means of open space for parks and play grounds and 'ventilation' will be contrary to the legislative intent, and an abuse of the statutory power vested in the authorities…”

24. Protection of the environment, open spaces for recreation and fresh air, play grounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be 15 (1991) 4 SCC 54 98 taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA.

The public interest in the reservation and preservation of open spaces for parks and play grounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens.

36. …….Emphasis on open air and greenery has multiplied and the city or town planning or development Acts of different States require even private house owners to leave open space in front and back for lawn and fresh air…….”

124. In the case of Shanti Sports Club and Another v.

Union of India and Others16, this Court enunciated the

difference between developed and developing countries vis­à­

vis planned development and observed that the object of

planned development had been achieved by developed

countries by rigorous enforcement of master plans prepared

after careful study of complex issues, scientific research and

16 (2009) 15 SCC 705 99 rationalisation of laws and concluded that developed

countries had laid great emphasis on the planned

development of cities.

125. It was further observed that the people of developed

countries had greatly contributed to the concept of planned

development of cities by strictly adhering to the planning

laws, the Master Plan etc. and that they respect the laws

enacted by the legislature for regulating planned development

of the cities and seldom is there a complaint of violation of

Master Plan etc. in the construction of buildings, residential,

institutional or commercial. On the other hand, the scenario

in developing countries like ours was substantially different.

Though, the competent legislatures have, from time to time,

enacted laws for ensuring planned development of the cities

and urban areas, enforcement thereof has been extremely

poor and the people have violated the master plans, zoning

plans and building regulations and bye­laws with impunity.

This Court observed as under:

“74. ………….In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn a blind eye either due to the 100 influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads………

75. Unfortunately, despite repeated judgments by this Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the State apparatus. As and when the courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance of laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those 101 in power have come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.” [Emphasis supplied]

126. A strong reliance has been placed on behalf of the

respondents on the provisions of the 2017 Rules. It has been

submitted that the 2017 Rules clearly permit construction of

three storeys. It is submitted that ‘storey’ has been defined

to mean any horizontal division of a building so constructed

as to be capable of use as a living apartment, although such

horizontal division may not extend over the whole depth or

width of the building but shall not include mezzanine floor.

It is therefore submitted that when the 2017 Rules itself

permit construction of three storeys having independent

kitchens etc. and the 2017 Rules having not been challenged, 102 it is not permissible for the appellants to argue that three

persons cannot be permitted to occupy three different

dwelling units on each storey.

127. We are unable to accept the said argument. It is a

different matter that three co­sharers decide to construct a

building for residential house and construct three storeys for

occupation by each of the co­sharers. However, allowing

such modus operandi to continue, which, in effect, nullifies

the effect of repeal of the 2001 Rules, enactment of the 2007

Rules, and recalling an attempt to reintroduce

apartmentalization in the draft CMP­2031, would be

permitting to do something indirectly which is not

permissible in law.

128. Another aspect that needs to be taken into

consideration is that the CMP­2031 as well as the report of

the said Board emphasizes that in order to maintain the

“Corbusian Chandigarh” status of Phase­I of Chandigarh, no

redensification is to be done without the permission of the

Heritage Committee. Undisputedly, permitting three

apartments to be constructed in one dwelling unit would

103 result in increasing the density in population in the Le

Corbusier zone. This, in our view, cannot be done without

the same being approved by the Heritage Committee and the

Central Government.

129. It further needs to be noted that one of the guiding

principles that has been taken into consideration by the said

Board is that the same practices which were followed while

developing the New Delhi Municipal area (Lutyen’s Delhi) be

followed in respect of the city of Chandigarh. Insofar as the

practices that were followed while developing New Delhi

Municipal area (Lutyen’s Delhi), a Bench consisting of three

learned Judges of this Court had an occasion to consider the

same in the case of New Delhi Municipal Council and

Others v. Tanvi Trading and Credit Private Limited and

Others17, wherein this Court observed thus:

“6. On 1­8­1990, the Master Plan, 2001 was approved wherein it was specifically mentioned that the bungalow character of LBZ needs to be preserved. The Master Plan even without specifically mentioning LBZ guidelines visualised similar treatment of LBZ so as to maintain the low density area without in any manner adversely affecting the

17 (2008) 8 SCC 765 104 green cover in the area. On 27­7­1993 objections were invited to the Zonal Development Plan whereas on 25­5­1994 the New Delhi Municipal Council Act, 1994 came into force.”

130. In the said case, this Court was considering an

appeal challenging the judgment of the Division Bench of the

High Court vide which it was held that the order rejecting

building plans submitted by the respondents for the

construction of a 15 storeyed building in the Lutyens

Bungalow Zone (LBZ) was illegal. Vide the said judgment of

the High Court, the New Delhi Municipal Council was

directed to return the building plans submitted by the

respondents with an endorsement “sanctioned” within the

time specified in the order. This Court, however, vide

judgment dated 28th August 2008, set aside the judgment of

the High Court and allowed the appeal in the following terms:

“47. On the facts and in the circumstances of the case, this Court is of the opinion that the respondents would be entitled to construct bungalow on their plot of land, in terms of guidelines dated 8­2­1988 and that they would not be entitled to construct fifteen dwelling units which is quite contrary to those guidelines. The record does not indicate that the building plans of the respondents are fully compliant with the requirements of the Delhi Master Plan, 2001 and 105 the Delhi Bye­Laws, 1983 and, therefore, the impugned judgment deserves to be set aside.”

131. Though, it may not be strictly possible to adhere to

the practices that are followed in LBZ, when the report of the

said Board as well as the CMP­2031 emphasizes on the

approval of the Heritage Committee before permitting any

redensification in the Le Corbusier zone, the Chandigarh

Administration could not have made the provisions in the

CMP­2031 permitting redensification without the approval of

the Heritage Committee.

132. A perusal of the CMP­2031 itself would reveal that

the Expert Committee observes that Chandigarh’s inscription

on UNESCO’s World Heritage list would bring many benefits

as the city would join a select list of other modern

cities/urban areas currently inscribed on it. In our view, in

this background, providing something which would adversely

affect the heritage status of the Le Corbusier Zone, without

the approval of the Heritage Committee, would not be

permissible.

106

133. The material placed on record would clearly reveal

that Phase­I was designed for a low­rise plotted development

with a greenbelt at the Centre running north east to south

east. Wide roads planned in a systematic hierarchy provide

structure to the city which has well planned facilities.

Landscaped green avenues give it amenity value. In our

view, permitting anything which would have an adverse effect

on the heritage status of the city without the approval of the

Heritage Committee itself would be contrary to the CMP­2031

and the report of the said Board.

134. Insofar as the contention raised on behalf of the

respondents that the restriction on transfer of property would

not be permissible in view of the provisions of the TP Act is

concerned, it is to be noted that in the case of Chander

Parkash Malhotra (supra), the High Court had held Rule 14

of the 1960 Rules to be ultra vires to the Constitution of

India. However, in an appeal filed by the Chandigarh

Administration, this Court set aside the said order of the

High Court. Apart from that, it is to be noted that Rule 14 of

the 1960 Rules and Rule 16 of the 2007 Rules have been

107 enacted under the 1952 Act. It is a settled law that in case of

a conflict between a special provision and a general

provision, the special provision prevails over the general

provision and the general provision applies only to such

cases which are not covered by the special provision. Reliance in this respect is to be made to the judgment of this

Court in the case of J.K. Cotton Spinning & Weaving Mills

Co., Ltd. v. The State of Uttar Pradesh and Others18,

which has been consistently followed by this Court.

135. We may also gainfully refer to the observations of a

Full Bench of the Punjab & Haryana High Court in the case

of Dheera Singh v. U.T. Chandigarh Admn. and Others 19,

wherein the Full Bench has held that “The Parliament, in no

uncertain terms, has expressed through a non obstante

clause contained in Section 424­A of the Punjab Municipal

Corporation (Extension to Chandigarh) Act, 1994 that the

provisions of the 1952 Act shall operate and have an

overriding effect.” We respectfully agree with the view taken

by the Full Bench.

18 [1961] 3 SCR 185 19 2012 SCC OnLine P&H 21473 108

136. Another aspect that needs to be taken into

consideration is that, as observed in the interim order of the

High Court dated 27th July 2021, the Chandigarh

Administration has not been alive to the situation. Taking

into consideration the importance of the matter, we had

directed the Estate Officer to remain present during the

proceedings of the hearing. Accordingly, Shri Vinay Pratap

Singh, Estate Officer, was personally present. The Estate

Officer also agreed that though CMP­2031 is opposed to

apartmentalization and redensification, under the 2017

Rules there was no restriction to construct three independent

units by co­owners. One aspect that needs to be taken into

consideration is that though under the 2017 Rules, one

dwelling unit is being permitted to be converted into three

dwelling units, there is no adequate provision for parking.

The Estate Officer also agreed that there was a huge problem

of parking in the city of Chandigarh. This aspect had also

not been taken into consideration while notifying the 2017

Rules. It is difficult to appreciate as to how on one hand, the

Chandigarh Administration is taking a stand that

apartmentalization is not permissible and on the other hand, 109 turning Nelson’s eye when plans, which ex­facie amount to

apartmentalization, are being submitted and sanctioned

under its very nose.

137. It is further pertinent to note that in the CMP­2031

itself, the Expert Committee has recommended thus:

“Master Plan Committees’ recommendation Preparation and notification of Heritage Regulations should be prioritized. The earlier approved Draft Notification prepared at the time of preparation of the UNESCO Nomination Dossier and the Model Heritage Regulations issued by the GOI can be used as a reference. To prevent undue change or damage to the historic and cultural value of Le Corbusier’s urbanism, interim orders must be issued not to make any modifications in the heritage areas approved by the Government of India, the circulation structure, the generic sector, architectural control and the plantations till such time as heritage regulations are finalized.”

138. It has been recommended that to prevent undue

change or damage to the historic and cultural value of Le

Corbusier’s urbanism, interim orders must not be issued to

make any modifications in the heritage areas approved by the

Government of India, the circulation structure, the generic

sector, architectural control and the plantations. 110

139. Judicial notice can be taken of the creation of the

city of Brasilia as the capital of Brazil. From the website of

the “UNESCO World Heritage Convention”, it could be seen

that the city was planned by urban planner Lucio Costa and

architect Oscar Niemeyer. It will be interesting to note that

while planning the said city, urban living as promoted by Le

Corbusier and his treatise titled “How to Conceive Urbanism”

served as an inspiration. It is worthwhile to note that in spite

of various changes, Lucio Costa’s Pilot Project (Plano Piloto)

still remains preserved. It will be apposite to refer to the

following extract from the said website:

“The urban framework of Brasilia includes all of the elements required to demonstrate outstanding universal value. A city that is at once urbs and civitas, Brasilia has preserved its original guiding principles intact, as reflected in the protection of its urban scales, legally protected by local and federal organisms of government of the country. The city finds itself today in the midst of a process of consolidation, in accordance with its dual function as city and capital, through the continuing implementation of new urban services and structures. The World Heritage property is vulnerable to urban development pressure including increased traffic and public transport requirements. The city’s various sectors, as laid out in the initial plan, are now in the process of being supplemented and, indeed, concluded, in line with the original urban principles. These changes in no way 111 jeopardize the singular and outstanding value of Lucio Costa’s Pilot Project (Plano Piloto), which remains wholly preserved, both physically and symbolically.

It is possible based on the still undeveloped areas around Brasilia, the surrounding green spaces, and the location’s topography, to clearly distinguish the city’s limits from the territorial expanse in which it was introduced, singular attributes that enable analysis of the site without losing any of the basic information critical to transmitting its continued Outstanding Universal Value.”

140. It will also be relevant to extract the following

passage from the said website, which would show the steps

taken for protection of the urban framework of Brasilia:

“Protection of the Urban Framework of Brasilia is governed by a series of legal instruments intended to ensure its preservation on three operational levels: local, federal, and global. At the local level, a set normative instruments consisting of specific laws aimed at protecting the heritage site as well as highly complex body of technical and operational urban legislation based on the Federal District’s Urban and Land Settlement Policy have been put in place.”

141. The said website would also show that similar steps

have been taken for protecting the White City of Tel­Aviv and

the city of Le Havre, rebuilt by Auguste Perret.

112

142. We find that similar steps need to be taken by the

Chandigarh Administration as well as the Government of

India for protecting the heritage status of Le Corbusier’s

Chandigarh.

143. In this respect, we may also refer to the Directive

Principles contained in Articles 49 and 51A(f) and (g) of the

Constitution of India, which read thus:

“49. Protection of monuments and places and objects of national importance. – It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.

51A. Fundamental duties. – It shall be the duty of every citizen of India – ……..

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;”

144. A conjoint reading of the aforesaid provisions would

reveal that a responsibility is cast upon the State as well as

the citizens to protect and conserve the heritage.

113 Undisputedly, Phase­I of Chandigarh, i.e., Corbusian

Chandigarh, even according to the respondent­authorities,

possesses a heritage status. The CMP­2031 itself

emphasizes that Chandigarh should be included in the

UNESCO’s World Heritage List due to its outstanding

universal value. As already discussed hereinabove, the

fragmentation/apartmentalization of residential units in

Phase­I of Chandigarh is destructive of the vision of Le

Corbusier. It is also opposed to the concept of protecting and

preserving the heritage status of Corbusian Chandigarh. As

such, it is necessary that the respondent­authorities must

take every possible step for preserving the heritage status of

Corbusian Chandigarh.

XI. ENVIRONMENTAL ISSUES:

145. One another important aspect that needs to be taken

into consideration is the adverse impact on environment on

account of haphazard urbanization. It will be relevant to

refer to Clause 20.3 of the CMP­2031 which we have already

reproduced hereinabove. It has been recommended that an

Effective Environmental Management Plan be devised for the

114 region including Chandigarh, which includes environmental

strategy, monitoring regulation, institutional capacity

building and economic incentives. It is observed that the

proposal needs a legal framework and a monitoring

committee to examine the regional level proposals/big

developments by the constitution of an Inter State high

powered Regional Environmental Management Board, as per

the proposal of the Ministry of Environment and Forests,

Government of India.

146. The United Nations Environment Programme (UNEP)

notes in its publication titled “Integrating the Environment in

Urban Planning and Management – Key Principles and

Approaches for Cities in the 21st Century” that more than half

of the world’s population is now living in urban areas. It

further noted that by the year 2050, more than half of Africa

and Asia’s population will live in towns and cities. It

recognized that City Development Strategies (CDSs) have

shown how to integrate environmental concerns in long­term

city visioning exercises. It states that environmental

mainstreaming can help to incorporate relevant

115 environmental concerns into the decisions of institutions,

while emerging ideas about the green urban economy show

how density can generate environmental and social

opportunities. It states that the strategies need to be

underpinned with governance structures that facilitate

integration of environmental concerns in the planning

process.

147. The said publication defines EIA to be an analytical

process or procedure that systematically examines the

possible environmental consequences of the implementation

of a given activity (project). It is aimed to ensure that the

environmental implications of decisions related to a given

activity are taken into account before the decisions are made.

148. Judicial notice is also taken of the cover story

published in the weekly, “India Today”, dated 24 th October

2022, titled as “Bengaluru – How to Ruin India’s Best City” by

Raj Chengappa with Ajay Sukumaran. The said article

depicts the sorry state of affairs as to how the city of

Bengaluru, once considered to be one of India’s best cities, a

‘Garden city’ has been ruined on account of haphazard urban

116 development. It takes note of as to how on account of one

major spell of rain in the September of 2022, the city bore the

brunt of nature’s fury. Various areas of the city were

inundated with heavy rains. The loss the flood caused to the

Outer Ring road tech corridor alone was estimated to be over

Rs.225 crore.

149. The article notes that, while on one hand, on

account of heavy rains, many of the houses were submerged

in water, on the other hand, the city faced a huge shortage of

drinking water.

150. The article further notes that rapid expansion of the

city with no appropriate thought given towards

transportation and ease of mobility has led to nightmarish

traffic jams on its arterial roads. It notes that, almost

overnight, Bengaluru's municipal jurisdiction grew from 200

sq. km. to 800 sq. km. It observes that the only one to

benefit was the politician­businessman­builder nexus, which

has thrived. It further noted that though posh colonies

mushroomed in new areas, the infrastructure lagged, as

117 roads remained narrow, the drainage poor, and no adequate

provision for garbage disposal too.

151. The article notes that the primary canals known

locally as rajakaluves were once natural rain­fed streams

across which farmers built small bunds over time, to arrest

the flow of water and create lakes. It further notes that these

interlinked man­made lakes worked as a storm­water drain

network. However, in order to meet the demand for space for

construction and roads, the administrators allowed the lakes

to be breached regularly. The lakes, which once numbered a

thousand­odd, are now reduced to a paltry number. Worse,

the rajakaluves that channelized the storm water had

buildings built over them.

152. The warning flagged by the city of Bengaluru needs

to be given due attention by the legislature, executive and the

policy makers. It is high time that before permitting urban

development, EIA of such development needs to be done.

XII. CONCLUSION:

118

153. Taking overall view of the matter, we are of the

considered view that permitting redensification in Phase­I,

which has heritage value, on account of being “Corbusian

Chandigarh”, without the same being approved by the

Heritage Committee, is contrary to the CMP­2031 itself. The

CMP­2031 on one hand does not permit apartmentalization,

however, on the other hand, it estimates the number of

dwelling units to be triple of the plots available. Though on

account of repeal of the 2001 Rules in the year 2007 and on

account of Rule 16 of the 2007 Rules, the High Court itself

holds that apartmentalization is not permissible; it goes on to

hold that though the developers/builders are in effect

indulging into construction of three apartments in a building,

the same does not amount to apartmentalization. In our

view, this would amount to permitting something indirectly

which is not permitted directly. The authorities of the

Chandigarh Administration are blindly sanctioning building

plans, when from the building plans itself it is apparent that

the same are in effect converting one dwelling unit into three

apartments. Such a haphazard growth may adversely affect

the heritage status of Phase­I of Chandigarh which is sought 119 to be inscribed as a UNESCO’s heritage city. It is further to

be noted that though the Chandigarh Administration is

permitting one dwelling unit to be converted into three

apartments, its adverse effect on traffic has not been

addressed. With the increase in number of dwelling units, a

corresponding increase in the vehicles is bound to be there.

However, without considering the said aspect, one dwelling

unit is permitted to be converted into three apartments.

154. We find that the High Court has failed to take into

consideration all these aspects. No doubt that the High Court

has issued certain directions so as to protect the interest of

home buyers. It has also observed that “Chandigarh

Administration chooses to stay smug, taking a stand on

paper that floor­wise sale of residential building is not

permissible while residential floors are being advertised for

sale right under its nose”. It therefore directed the

Chandigarh Administration to issue a notice to be published

at periodic intervals in the newspapers for the purposes of

sounding a word of caution and educating such home buyers

who have already purchased a share in a residential

120 building/site as also the prospective home buyers. The High

Court also directed the Chandigarh Administration to

mention in the said notice that fragmentation of site/building

is specifically prohibited under the 2007 Rules. It further

directed to mention in the said notice that the Chandigarh

Administration does not recognize ownership rights over any

floor/part of any site/building by virtue of such transactions.

A word of caution was also directed to be put, that in case a

dispute arises between the co­sharers/co­owners, the only

remedy would be to put the property to auction and the sale

proceeds thereafter be distributed inasmuch the

fragmentation/division of the building/site by metes and

bounds is specifically prohibited.

155. In our view, the High Court ought not to have

stopped at that. Having noted the stand of the Chandigarh

Administration that the construction and floor­wise sale of

residential building was not permissible in view of Rule 16 of

the 2007 Rules, the High Court ought to have held that the

statutory rules framed under 1952 Act expressly prohibits

fragmentation/division/bifurcation/apartmentalization of a

121 residential unit in Phase­I of Chandigarh. The legislative

intent as found in Rule 14 of the 1960 Rules has been clearly

reiterated in Rule 16 of the 2007 Rules, which has been

enacted under Section 5 read with Section 22 of the 1952

Act. We are of the considered view that the High Court has

erred in not considering the same.

156. Shri Patwalia fairly conceded that the said exercise

has acted as a deterrent and number of such transactions

amounting to apartmentalization have substantially reduced.

157. No doubt that the High Court has rightly issued the

directions to safeguard the interest of the home buyers.

However, we find that the High Court itself having found that

after the repeal of the 2001 Rules and enactment of the 2007

Rules, apartmentalization was not permissible, it ought not

to have permitted a modus operandi which indirectly permits

to do what was not permissible in law. In any case, taking

into consideration the heritage status of Phase­I, the High

Court ought to have considered the matter in correct

perspective.

122

158. We may gainfully refer to an article by Jonathan

Glancey dated 11th December 2015 titled “Is this the perfect

city?”, published by the BBC, which reads thus:

“Of all the world’s ideal cities, Chandigarh has done remarkably well, offering striking monumental architecture, a grid of self­contained neighbourhoods, more trees than perhaps any Indian city and a way of life that juggles tradition with modernity. While history tells us ideal cities are mostly best left on paper, Chandigarh – perhaps one of the least likely appears to have succeeded against the grain.”

159. As could be seen from the said article, Chandigarh

has done remarkably well, offering striking monumental

architecture, a grid of self­contained neighbourhoods, more

trees than perhaps any Indian city and a way of life that

juggles tradition with modernity.

160. At the cost of repetition, it must be noted that the

CMP­2031 itself, at more than one place, states that

Chandigarh has been planned as a green city with

abundance of open space and to ensure that every dwelling

has its adequate share of the three elements of Sun, Space

and Verdure. The fragmentation/apartmentalization of single

123 dwelling units in Phase­I of Chandigarh, in our view, will

injure the ‘Lungs’ of the city as conceptualized by Le

Corbusier. In this regard, the observations of this Court in

the case of Municipal Corporation of Greater Mumbai and

Others v. Kohinoor CTNL Infrastructure Company

Private Limited and Another20, are highly instructive. In

the said case, this Court held as follows, regarding the

implications of overcrowding of cities:

“13. ……When the cities are overcrowded, the roads are narrow and the traffic is increasing, the situation will be extremely hazardous for the children and senior citizens. There will be no greens in the buildings and the people will always crave for fresh and pure air. The buildings without greens will add to the ever increasing temperature of the overcrowded cities and urban areas. To put it differently, all constructions without adequate green and recreational areas will have serious impact on the environment and human life…….”

161. The High Court ought to have been alive to the

unique status of Chandigarh and considered the matter from

that perspective.

20 (2014) 4 SCC 574 124

162. One other aspect that needs to be taken into

consideration is that on account of certain acts and

omissions of the Chandigarh Administration, in certain

areas, there has been a chaotic situation. As already pointed

out herein, on one hand, the 2001 Rules have been repealed

in the year 2007 and the 2007 Rules have been enacted. In

view of Rule 16 of the 2007 Rules, there is a specific bar on

fragmentation of sites or buildings. It is the specific stand of

the Chandigarh Administration that construction of

apartments is not permissible. On the other hand, the 2017

Rules are enacted in such a way that there is scope for the

construction of apartments. Not only that, but the

Chandigarh Administration is sanctioning plans which, in

effect, permit apartmentalization.

163. We may gainfully refer to the following observations

made by the Full Bench of the High Court in the case of

Dheera Singh (supra), which read thus:

“103. The Executive has in the instant case, with reference to the 1952 Act, failed to live­up to the expectations of the residents as instead of approaching the Ministry concerned with a concrete proposal on data­based information for onward consideration of the Legislature to rejuvenate the 125 1952 Act and make it more vibrant and alive to the issues in praesentia or in future, it has gone for ad hoc solutions taking refuge under Section 22 of the Act. Strangely, the amount of penalty or fine fixed by the Legislature in the year 1952 (Sections 8, 13 & 15) has not been got revised even after the expiry of 60 years.

104. The principles governing the powers of delegated legislation are fairly settled. Such a power is exercisable to implement and achieve the objects of a Statute within the framework of the legislative policy; every delegate is subject to the authority and control of the principal who can always direct, correct or cancel the action of the subordinate legislation; the delegate in the garb of making rules cannot legislate on the fields covered by the Act.”

164. We are therefore inclined to issue certain directions

so as to ensure that the issue regarding apartmentalization is

first examined by the Heritage Committee so as to preserve

the heritage status of Corbusian Chandigarh. We are also

inclined to direct the Chandigarh Administration to take

steps for amending the CMP­2031 and the 2017 Rules after

the issue has been addressed by the Heritage Committee.

However, we feel that such important issues cannot be left

only to the discretion of the Chandigarh Administration. We

therefore find it necessary to direct that after the Chandigarh

126 Administration takes decision to amend the provisions, the

same shall be placed before the Central Government for its

consideration and final decision. We find that for protecting

the heritage status of Corbusian Chandigarh, it is necessary

that we should exercise our powers under Article 142 of the

Constitution of India and issue certain directions.

165. In that view of the matter, we hold that in view of

Rule 14 of the 1960 Rules, Rule 16 of the 2007 Rules and the

repeal of the 2001 Rules, fragmentation/division/

bifurcation/apartmentalization of a residential unit in Phase­

I of Chandigarh is prohibited.

166. We further issue the following directions:

(i) The Heritage Committee is directed to consider the

issue of redensification in Phase­I of the city of

Chandigarh;

(ii) Needless to state that the Heritage Committee

would take into consideration its own

recommendations that the northern sectors of

127 Chandigarh “(Corbusian Chandigarh)” should be

preserved in their present form;

(iii) The Heritage Committee shall also take into

consideration the impact of such redensification

on the parking/traffic issues;

(iv) After the Heritage Committee considers the issues,

the Chandigarh Administration would consider

amending the CMP­2031 and the 2017 Rules

insofar as they are applicable to Phase­I in

accordance with the recommendations of the

Heritage Committee;

(v) Such amendments shall be placed before the

Central Government, which shall take a decision

with regard to approval of such amendments

keeping in view the requirement of maintaining the

heritage status of Le Corbusier zone;

(vi) Till a final decision as aforesaid is taken by the

Central Government:

a. the Chandigarh Administration shall not

sanction any plan of a building which ex­

128 facie appears to be a modus operandi to

convert a single dwelling unit into three

different apartments occupied by three

strangers; and

b. no Memorandum of Understanding (MoU) or

agreement or settlement amongst co­owners

of a residential unit shall be registered nor

shall it be enforceable in law for the purpose

of bifurcation or division of a single

residential unit into floor­wise apartments.

(vii) We further direct that hereinafter, the Central

Government and Chandigarh Administration will

freeze FAR and shall not increase it any further;

(viii) That the number of floors in Phase­I shall be

restricted to three with a uniform maximum height

as deemed appropriate by the Heritage Committee

keeping in view the requirement to maintain the

heritage status of Phase­I; and

(ix) That the Chandigarh Administration shall not

resort to formulate rules or bye­laws without prior

129 consultation of the Heritage Committee and prior

approval of the Central Government.

167. Before we part with the judgment, we observe that it

is high time that the Legislature, the Executive and the Policy

Makers at the Centre as well as at the State levels take note

of the damage to the environment on account of haphazard

developments and take a call to take necessary measures to

ensure that the development does not damage the

environment. It is necessary that a proper balance is struck

between sustainable development and environmental

protection. We therefore appeal to the Legislature, the

Executive and the Policy Makers at the Centre as well as at

the State levels to make necessary provisions for carrying out

Environmental Impact Assessment studies before permitting

urban development.

168. We direct the copy of this judgment to be forwarded

to the Cabinet Secretary to the Union of India and the Chief

Secretaries to all the States to take note of the aforesaid

observations. We hope that the Union of India as well as the

State Governments will take earnest steps in that regard.

130

169. We must place on record our deep appreciation for

the valuable assistance rendered by Shri P.S. Patwalia and

Shri Ranjit Kumar, learned Senior Counsel appearing on

behalf of the appellants and Shri K.M. Natraj, learned ASG,

Shri Kapil Sibal, Shri Ajay Tewari and Shri Gaurav Chopra,

learned Senior Counsel appearing on behalf of the

respondents.

170. In the result, the appeals are allowed in the aforesaid

terms.

171. Pending application(s), if any, shall stand disposed of

in the above terms. No order as to costs.

…..….......................J. [B.R. GAVAI]

…….......................J. [B.V. NAGARATHNA] NEW DELHI;

JANUARY 10, 2023

131