RESIDENT’S WELFARE ASSOCIATION AND ANOTHER versus THE UNION TERRITORY OF CHANDIGARH AND OTHERS on 10 January 2023

[2023] 1 S.C.R. 601

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER

v.

THE UNION TERRITORY OF CHANDIGARH AND OTHERS(Civil Appeal No. 274 of 2023)

JANUARY 10, 2023

[B. R. GAVAI AND B. V. NAGARATHNA, JJ.]

Urban Development – Town Planning – Committee forChandigarh Master Plan, 2031 (CMP-2031) – Issue ofredensification in Phase-I sector in the city of Chandigarh –Fragmentation/division/bifurcation/apartmentalization of residentialunits – Held: In view of r.14 of the Chandigarh (Sale of Sites andBuilding) Rules, 1960, r.16 of the Chandigarh Estate Rules, 2007and repeal of the Chandigarh Apartment Rules, 2001, fragmentation/division/bifurcation/ apartmentalization of residential units inPhase-I sector of Chandigarh is prohibited – On facts, authoritiesof the Chandigarh Administration were blindly sanctioning buildingplans, when from the building plans itself it was apparent that thesame were in effect converting one dwelling unit into three apartments – Such a haphazard growth may adversely affect the heritage statusof Phase-I of Chandigarh – The Committee for Chandigarh MasterPlan, 2031 (CMP-2031) itself, at more than one place, states thatChandigarh has been planned as a green city with abundance ofopen space and to ensure that every dwelling has its adequate shareof the three elements of Sun, Space and Verdure – Fragmentation/apartmentalization of single dwelling units in Phase-I of Chandigarhwill injure the ‘Lungs’ of the city as conceptualized by Le Corbusier – For protecting the heritage status of Corbusian Chandigarh,directions issued u/Art.142 of the Constitution – Issue regardingapartmentalization to be first examined by the Chandigarh HeritageConservation Committee – Chandigarh Administration to thereaftertake steps for amending the CMP-2031 and the Chandigarh BuildingRules (Urban), 2017 and subsequently, the same to be placed beforethe Central Government for its consideration and final decision –Chandigarh Estate Rules, 2007 – r.16 – Chandigarh (Sale of Sites

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Aand Building) Rules, 1960 – r. 14 – Chandigarh Building Rules(Urban), 2017 – Chandigarh Apartment Rules, 2001 – Constitutionof India – Arts. 142.

Urban Development – Damage to environment on account ofhaphazard developments – Necessity of proper balance betweenBsustainable development and environmental protection – TheLegislature, the Executive and the Policy Makers at the Centre aswell as at the State levels to make necessary provisions for carryingout Environmental Impact Assessment studies before permitting urbandevelopment.C

Word and Phrases: “Fragment” and “Fragmentation” –Meaning of.

Allowing the appeals and issuing directions, the CourtD

HELD : 1. From the material placed on record, it appearsthat the modus operandi that is devised by the developers is thatthe allottee of the house would convey 50% of the share to thefirst purchaser, 30% to the second purchaser and 20% to thethird purchaser. Thereafter, all the three purchasers would enterEinto either a settlement deed or a Memorandum of Understanding(MoU) under which the party having 50% share of the house isentitled to the entire ground floor with basement including theback courtyard but excluding the front courtyard and the staircase.The second purchaser having 30% share in the house would beFentitled to the entire first floor excluding the staircase. The thirdpurchaser having 20% share of the house would be entitled tothe entire second floor including the roof of the second floor butexcluding the staircase. It is clear that, the parties who enteredinto such an MoU, were conscious of the fact that as per theGRules of the Estate Office, it could not be mentioned in the saledeed that the possession of particular floor is given to thepurchaser. It is also clear that the MoU clearly states that all theparties, after entering into such a document, would peacefullyhold, use and enjoy their respective portions as their own propertyH

without any hindrance, interruption, claim or demand whatsoeverfrom each other. In any case, what is to be found is the realintention behind the transaction. When the transaction clearlyshows that it is being entered into for the purpose of constructingthree different apartments on each floor and also mentions thatthe same is not permissible under the existing rules, the intentionof the parties is to construct three different units which aredisintegrated. This is nothing else but fragmentation. It is anattempt to by-pass the statutory prohibition. [Paras 109, 111, 113and 116][656-H; 657-A-C, E-F; 658-B-D; 659-C]

2. In the teeth of the undertaking which the owner isrequired to furnish in an application for obtaining the occupationcertificate; and the specific stand of Chandigarh Administrationthat it does not permit construction of apartments, it is difficultto appreciate as to how building plans have been sanctioned whichex-facie show that they are nothing else but apartments. It isclear that the modus operandi of the developers is, in effect,resulting into apartmentalization of the buildings. What is notpermissible in law after the repeal of the Chandigarh ApartmentRules, 2001 on 1st October 2007, and enactment of Rule 16 ofthe the Chandigarh Estate Rules, 2007, is indirectly beingpermitted under the guise of sale of shares and subsequent MoUs.[Paras 118 and 119][659-F-G]

3. Allowing a modus operandi to continue, which, in effect,nullifies the effect of repeal of the 2001 Rules, enactment of the2007 Rules, and recalling an attempt to reintroduceapartmentalization in the draft Committee for Chandigarh MasterPlan, 2031 (CMP-2031), would be permitting to do somethingindirectly which is not permissible in law. In order to maintainthe “Corbusian Chandigarh” status of Phase-I of Chandigarh, noredensification is to be done without the permission of theHeritage Committee. Undisputedly, permitting three apartmentsto be constructed in one dwelling unit would result in increasingthe density in population in the Le Corbusier zone. This cannot A

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Abe done without the same being approved by the HeritageCommittee and the Central Government. [Paras 127 and128][663-F-H; 664-A-B]

4. Taking overall view of the matter, it is clear thatpermitting redensification in Phase-I, which has heritage value,Bon account of being “Corbusian Chandigarh”, without the samebeing approved by the Heritage Committee, is contrary to theCommittee for Chandigarh Master Plan, 2031 (CMP-2031) itself.The CMP-2031 on one hand does not permit apartmentalization,however, on the other hand, it estimates the number of dwellingCunits to be triple of the plots available. Though on account ofrepeal of the 2001 Rules in the year 2007 and on account of Rule16 of the 2007 Rules, the High Court itself holds thatapartmentalization is not permissible; it goes on to hold thatthough the developers/builders are in effect indulging intoDconstruction of three apartments in a building, the same doesnot amount to apartmentalization. This would amount to permittingsomething indirectly which is not permitted directly. Theauthorities of the Chandigarh Administration are blindlysanctioning building plans, when from the building plans itself itEis apparent that the same are in effect converting one dwellingunit into three apartments. Such a haphazard growth mayadversely affect the heritage status of Phase-I of Chandigarhwhich is sought to be inscribed as a UNESCO’s heritage city.[Para 153][671-B-E]F

5. The Committee for Chandigarh Master Plan, 2031 (CMP-2031) itself, at more than one place, states that Chandigarh hasbeen planned as a green city with abundance of open space andto ensure that every dwelling has its adequate share of the threeGelements of Sun, Space and Verdure. The fragmentation/apartmentalization of single dwelling units in Phase-I ofChandigarh will injure the ‘Lungs’ of the city as conceptualizedby Le Corbusier. This Court is therefore inclined to issue certaindirections so as to ensure that the issue regardingH

apartmentalization is first examined by the Heritage Committeeso as to preserve the heritage status of Corbusian Chandigarh.This Court is also inclined to direct the ChandigarhAdministration to take steps for amending the CMP-2031 andthe Chandigarh Building Rules (Urban), 2017 after the issue hasbeen addressed by the Heritage Committee. However, suchimportant issues cannot be left only to the discretion of theChandigarh Administration. It is therefore necessary to directthat after the Chandigarh Administration takes decision to amendthe provisions, the same shall be placed before the CentralGovernment for its consideration and final decision. Forprotecting the heritage status of Corbusian Chandigarh, it isnecessary to exercise powers under Article 142 of theConstitution of India and issue certain directions. [Paras 160 and164][673-B-C; 674-E-G]

6. In view of Rule 14 of the Chandigarh (Sale of Sites andBuilding) Rules, 1960, Rule 16 of the Chandigarh Estate Rules,2007 and the repeal of the Chandigarh Apartment Rules, 2001,fragmentation/division/bifurcation/ apartmentalization of aresidential unit in Phase-I of Chandigarh is prohibited. [Para165][674-G-H]

7. The following directions were issued: (i) The HeritageCommittee shall consider the issue of redensification in Phase-Iof the city of Chandigarh; (ii) The Heritage Committee wouldtake into consideration its own recommendations that thenorthern sectors of Chandigarh “(Corbusian Chandigarh)” shouldbe preserved in their present form; (iii)The Heritage Committeeshall also take into consideration the impact of such redensificationon the parking/traffic issues; (iv) After the Heritage Committeeconsiders the issues, the Chandigarh Administration wouldconsider amending the CMP-2031 and the 2017 Rules insofar asthey are applicable to Phase-I in accordance with therecommendations of the Heritage Committee; (v) Suchamendments shall be placed before the Central Government, A

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Awhich shall take a decision with regard to approval of suchamendments keeping in view the requirement of maintaining theheritage status of Le Corbusier zone; (vi) Till a final decision asaforesaid is taken by the Central Government: (a.) the ChandigarhAdministration shall not sanction any plan of a building whichBex- facie appears to be a modus operandi to convert a singledwelling unit into three different apartments occupied by threestrangers; and (b.) no Memorandum of Understanding (MoU) oragreement or settlement amongst co-owners of a residential unitshall be registered nor shall it be enforceable in law for theCpurpose of bifurcation or division of a single residential unit intofloor-wise apartments. (vii) The Central Government andChandigarh Administration will freeze FAR and shall not increaseit any further; (viii) The number of floors in Phase-I shall berestricted to three with a uniform maximum height as deemed Dappropriate by the Heritage Committee keeping in view therequirement to maintain the heritage status of Phase-I; and (ix)The Chandigarh Administration shall not resort to formulate rulesor bye-laws without prior consultation of the Heritage Committeeand prior approval of the Central Government. [Para166][675-EA-H; 676-A-B]

8. It is high time that the Legislature, the Executive andthe Policy Makers at the Centre as well as at the State levelstake note of the damage to the environment on account ofhaphazard developments and take a call to take necessaryFmeasures to ensure that the development does not damage theenvironment. It is necessary that a proper balance is struckbetween sustainable development and environmental protection.The Legislature, the Executive and the Policy Makers at theCentre as well as at the State levels to make necessary provisionsGfor carrying out Environmental Impact Assessment studies beforepermitting urban development. [Para 167][676-B-D]

Municipal Corporation of Greater Mumbai and Othersv. Kohinoor CTNL Infrastructure Company PrivateHLimited and Another (2014) 4 SCC 574- relied on.

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v.THE UNION TERRITORY OF CHANDIGARH

New Delhi Municipal Council and Others v. TanviTrading and Credit Private Limited and Others (2008)8 SCC 765 : [2008]12 SCR 867; J.K. Cotton Spinning& Weaving Mills Co., Ltd. v. The State of Uttar Pradeshand Others [1961] 3 SCR 185; Tilak Raj Bakshi v.Avinash Chand Sharma (Dead) Through LegalRepresentatives and Others (2020) 15 SCC 605 : [2019]10 SCR 251; Kochkunju Nair v. Koshy Alexander andOthers (1999) 3 SCC 482 : [1999] 2 SCR 169; JaiSingh and Others v. Gurmej Singh (2009) 15 SCC 747: [2009] 1 SCR 413; Chandigarh Administration v.Chander Parkash Malhotra and Others Civil AppealNo. 4974 of 1992 dated 24[th] November 1992; Dr. K.A.Dhairyawan and Others v. J.R. Thakur and Others[1959] SCR 799; Rev. FR. K.C. Alexander v. State ofKerala (1973) 2 SCC 737 : [1974] 1 SCR 399;Bangalore Medical Trust v. B.S. Muddappa and Others(1991) 4 SCC 54 : [1991] 3 SCR 102; Shanti SportsClub and Another v. Union of India and Others (2009)15 SCC 705 : [2009] 13 SCR 710 - referred to.

Chander Parkash Malhotra v. Ved Parkash Malhotraand Others 1991 SCC OnLine P&H 245; Hardit Singhand Others v. Gurmukh Singh and Others 1918 SCCOnLine PC 2; Sant Ram v. Daya Ram and Others AIR1961 P&H 528; R.G. Hiremath and Another v. T.Krishnappa 1977 SCC OnLine Kar 96; LaxmipatSinghania v. Larsen and Toubro, Ltd. 1949 SCCOnLine Bom 11; Saiffuddin v. The Commissioner ofIncome Tax (129) 1985 SCC OnLine Raj 97; Sh.Chander Parkash Malhotra v. Sh. R.B.S. Chahal 1993SCC OnLine P&H 1179; Arvind Kapoor v. KumudKapoor and Another [Punjab & Haryana High Court -Regular Second Appeal No. 1562 of 2012 dated28.05.2019] and Dheera Singh v. U.T. ChandigarhAdmn. and Others 2012 SCC OnLine P&H 21473 –referred to.

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[2023] 1 S.C.R.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.274 of2023.

EFrom the Judgment and Order dated 23.11.2021 of the High Courtof Punjab and Haryana at Chandigarh in Civil Writ Petition No.18559 of2016.

With

FCivil Appeal No.275 of 2023.

K. M. Natraj, ASG, P. S. Patwalia, Ranjit Kumar, Kapil Sibal,Ajay Tewari, Gaurav Chopra, Sr. Advs., Ashok K. Mahajan, GauravPatwalia, Ms. Harsika Verma, Ms. Natasha Dalmia, Vanshdeep Dalmia,GSarad Kumar Singhania, Vatsal Joshi, Mohd. Akhil, Nakul ChengappaK. K., Ms. Akiti A. Manubarwale, Gurmeet Singh Makker, Ms. MishaRohatgi, Ajit Joher, Aditya Chadha, Devansh Srivastava, Bharat Monga,Nakul Mohta, Abhimanyu Tewari, Ms. Eliza Bar, Shree Pal Singh, Ms.Dilmrig Nayani, Tushar Bathija, Siddhant Saroha, Reshabh Bajaj, VardaanHSeth, Advs. for the appearing parties.

The Judgment of the Court was delivered by A

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1. Leave granted.

2. “Let this be a new town, symbolic of freedom of Indiaunfettered by the traditions of the past…an expressions of the nation’sfaith in the future”.

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These were the words of Pandit Jawaharlal Nehru, India’s FirstPrime Minister, while laying down the founding principles of a new cityfor Capital of the State of Punjab.

I. BACKGROUND:

3. After India attained independence in the year 1947, theGovernment of Punjab in consultation with the Government of Indiaapproved the site for the new Capital of the State in March 1948. Thenew city was designed by French Architect Le Corbusier in associationwith other architects, namely, Pierre Jeanneret, Jane B. Drew andMaxwell Fry. The city was planned as a living example of urban design, G

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*Ed. Note : Pagination in the Index is as per the original judgment.

Alandscaping and architecture. It was a city to be created with the use ofordinary construction materials and embellished with integral works ofart. Chandigarh’s monumental architecture as enunciated by Le Corbusieris based on the principles of town planning concept of Sun, Space, andVerdure. Le Corbusier incorporated principles of light, space and greeneryin the plan and used the human body as a metaphor – the ‘head’ containedBthe Capital Complex, the ‘heart’ being the Commercial Centre, i.e., Sector17, lungs (the leisure valley, innumerable open spaces and sector greens),the intellect (the cultural and educational institutions), the viscera (theindustrial area), and the ‘arms’ having academic and leisure facilitieslike open courtyards etc. The circulation system was conceived as havingCseven types of roads known as 7Vs.

4. Chandigarh has been envisaged as an administrative city withhierarchical distribution of population being such, that the populationdensity in the northern sectors is low, which increases towards thesouthern sectors. Chandigarh has been planned as a low-rise city, andDhas been so developed that even after sixty years of its inception, itretains the original concept to a large extent. This is how the concept ofthis “beautiful city” was born.

5. On division of the State of Punjab into States of Punjab andHaryana, the city was made a Union Territory (UT), and became theECapital for both the States. The city of Chandigarh was developed intotwo phases, Phase-I having Sectors 1 to 30 and Phase-II having Sectors31 to 47. Phase- I was designed for low-rise plotted development for atotal population of 1,50,000. Phase-II Sectors were to have a muchhigher density as compared to Phase-I Sectors.

F6. In the year 1952, the Union of India, in order to regulatedevelopment 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 exerciseof the powers conferred by Sections 5 and 22 of the 1952 Act, made theChandigarh (Sale of Sites and Building) Rules, 1960 (hereinafter referredGto as “the 1960 Rules”). Rule 14 of the 1960 Rules prohibits fragmentationor amalgamation of any site or building. The validity of Rule 14 of the1960 Rules 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 Others[1]. Vide its judgment in the said H1 1991 SCC OnLine P&H 245

case, the High Court held the said Rule 14 to be ultra vires to theConstitution of India. However, this Court, in the case of ChandigarhAdministration v. Chander Parkash Malhotra and Others[2], reversedthe said judgment of the High Court to the extent it declared Rule 14 ofthe 1960 Rules to be ultra vires.

7. In the year 2001, the Administrator, UT of Chandigarh, inexercise of powers conferred under Sections 5 and 22 of the 1952 Act,framed the Chandigarh Apartment Rules, 2001 (hereinafter referred toas “the 2001 Rules”). By virtue of the 2001 Rules, even in case of singleresidential units, it was permissible to sub-divide it into more than oneapartment. The citizens of UT of Chandigarh vehemently opposed theconstruction of apartments, which according to them, had the effect ofdestroying the character of the city. In view of the public outcry, the2001 Rules were repealed by notification dated 1[st] October 2007. In thesame year, i.e., 2007, the 1960 Rules were also repealed. TheAdministrator, UT of Chandigarh, in exercise of powers conferred underSection 22 of the 1952 Act, framed the Chandigarh Estate Rules, 2007(hereinafter referred to as “the 2007 Rules”) on 7[th] November 2007.Rule 16 of the 2007 Rules again prohibited fragmentation/amalgamationof any site or building.

8. In the year 2009, a Committee for Chandigarh Master Plan,2031 (for short, “CMP-2031”) came to be constituted. In the year 2010,a Committee of Experts (for short, “Expert Committee”) came to beconstituted to look at both the original concept of the city of Chandigarhas well as the maintenance of important heritage buildings in the UT ofChandigarh.

9. In the Draft CMP-2031, the 2001 Rules were re- introduced.Prior to the finalization of the CMP-2031, objections were invited. ABoard of “Inquiry and Hearing” (hereinafter referred to as, “the saidBoard”) was constituted to look at the grievances of the public at large.One of the major objections raised to the draft CMP-2031 was withregard to re-introduction of the 2001 Rules. The said Board, afterconsidering objections, recommended that the re- introduction of the2001 Rules should be deleted, and re- densification of any governmentresidential/institutional pocket in Phase-I sectors should only be donewith the prior approval of the Chandigarh Heritage ConservationCommittee (for short, “Heritage Committee”).

2 Civil Appeal No. 4974 of 1992 dated 24th November 1992

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A10. The aforesaid recommendations were accepted by the CentralGovernment and all references to the apartments in the Draft CMP-2031were deleted from the Final CMP- 2031, which was notified underSection 4(1)(f) of the 1952 Act and Sections 3, 4, 5 and 11 of the PunjabNew Capital (Periphery) Control Act, 1952 and under Article 239 of theConstitution of India.B

11. Noticing that in spite of the repeal of the 2001 Rules and thefact that further fragmentation of the property was prohibited as perRule 16 of the 2007 Rules, a large number of single dwelling units werebeing surreptitiously converted into apartments, the appellants-Associationfiled a Public Interest Litigation being CWP No. 18559 of 2016 beforeCthe High Court. It was the grievance of the appellants that certaindevelopers were purchasing the plots, constructing three apartmentsthereon and thereafter selling them to three different persons. It wassought to be contended that though the 2001 Rules were repealed, therebyprohibiting the construction of apartments on plots meant for singleDdwelling, and though the 1960 Rules and the 2007 Rules prohibited the

fragmentation/amalgamation, some unscrupulous elements wereattempting to construct and sell the apartments by indulging into illegalpractices. The prayer sought in the petition before the High Court wasfor restraining the respondents from permitting residential plots in theUT of Chandigarh which were allotted as single dwelling units to beEconstructed or utilized as apartments. A prayer was also sought directingthe respondent-Chandigarh Administration to take appropriate actionagainst the offending owners for violation of the undertakings submittedby them while applying for occupation certificate.

12. The High Court, vide order dated 15[th] September 2016, issuedFnotice in the said writ petition. In the said proceedings, an applicationbearing No. 16263 of 2016 came to be filed praying for stay of conversionof single dwelling units into apartments. A reply came to be filed in thesaid writ petition by the UT of Chandigarh, stating therein that theChandigarh Administration does not permit a residential house to beGconverted into an apartment on account of the fact that the 2001 Rulesnow stand repealed.

II. PROCEEDINGS BEFORE THE HIGH COURT:

13. Since, in spite of its specific stand, Chandigarh Administrationwas not taking any steps to prevent fragmentation/apartmentalisation of H

single dwelling units, a Special Leave Petition (Civil) being No. 15789 of2017 came to be filed before this Court. This Court, vide order dated24[th] May 2017, allowed to withdraw the said petition.

14. The appellants-Association thereafter filed another applicationbeing C.M. No. 1580 of 2018 in CWP No. 18559 of 2016 seekingappropriate directions to be issued to the Chandigarh Administration torestrain percentage sale or part of share sale of freehold residentialhouses. In the said application, notice came to be issued by the HighCourt on 5[th] February 2018. Since no orders were passed in the saidapplication, another application being C.M. No.19649 of 2019 came tobe filed on 16[th] December 2019, praying for interim directions to theChandigarh Administration to identify the residential plots which werefragmented into apartments. On 18[th] February 2020, notice came to beissued in the said application. The appellants-Association again filedSLP(Civil) No. 6642 of 2021 before this Court. This Court, vide orderdated 7[th] May 2021, disposed of the said SLP by requesting the HighCourt to decide the said writ petition within a period of four months.

15. In the meantime, the High Court had appointed an amicuscuriae to assist the court. On 27[th] July 2021, the High Court passed aninterim order directing the Chandigarh Administration to carry out anexercise whereby the properties/buildings were to be identified wherein,shares be it to the extent of 50%, 30% or 20% has been sold/transferredto a person outside the family of the original owner/shareholder. Thiswas to be done on the basis of the record maintained in the office of theEstate Officer. The second step was to carry out a physical inspectionof such identified buildings/dwelling units, to find out as to whether thesale of shares has actually translated into the buyer occupying anindependent floor in the otherwise composite dwelling unit, or to find outas to whether independent floors are in the process of being constructed.

16. The said order came to be challenged before this Court inSLP(Civil) Nos. 13120 and 12562 of 2021. The survey which wasdirected to be conducted by the High Court vide its order dated 27[th] July2021, came to be stayed by this Court vide order dated 9[th] August 2021.This Court, on being informed that the survey had already been completed,vide order dated 6[th] September 2021, clarified that the High Court canproceed with the hearing of the writ petition pending before it after takinginto consideration the report.

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A17. At the stage of hearing, the High Court considered the followingissues raised by the learned amicus:

“Issue No.1- What is the meaning to be assigned to the term“Fragmentation” under the 1952 Act and the Rules framedthereunder?

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Issue No.2- Is sale of share(s) by owner or co-owner of aresidential building prohibited under the 1952 Act or Rules madethereunder?

Issue No.3- Does sale of share(s) by owner or co- owner in aresidential building amount to ‘fragmentation’?

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Issue No.4- What is the status of a co-owner by virtue of purchaseof share(s) in a residential building?

Issue No.5- Can occupation/possession of a specific portion ofthe joint property be termed as apartmentalization?

DIssue No.6- Whether the residential building constructed on aresidential plot in UT Chandigarh meant for single family use andto be treated as a Single Dwelling Unit?”

18. Vide the impugned judgment dated 23[rd] November 2021, theHigh Court dismissed the writ petition. The High Court held that thereEwas no provision under the 1952 Act or the Rules framed thereundergoverning transfer of shares in relation to a site or building whetherowned singly or under joint ownership. However, the High Court heldthat the sale of share(s) out of a building/site by the allottee(s)/transferee(s) was not barred, and rather was permissible under thegeneral civil law. It further held that the status of such building/site,Fhowever, even after the sale of share(s) continues to be under jointownership. It further held that for constituting a fragmentation, therehas to be an element of permanent severance. Mere construction ofthree floors on a private plot and utilization of the same as independentunits would not amount to fragmentation. It held that unless there hasGbeen a sub-division of the building duly recognized by the Estate Officeralong with proportionate share in common areas and common facilities,the same would not amount to apartmentalization.

19. The High Court, however, found that the real estate agent/developer/seller, in order to extract maximum premium, would tend toHpaint 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 exclusivepossession but also ownership rights. The High Court observed that thesame was not permissible and the purchaser, by purchase of share(s),only became a co-owner/co-sharer in the entire building to the extent ofshareholding. In the eventuality of the dispute arising between theco-sharers/co-owners, the only remedy would be to put the property toauction and they would be only entitled to the sale proceeds as per theshare(s). It therefore issued certain directions to the UT of Chandigarhin order to protect the interests of such innocent purchasers. Beingaggrieved by the impugned judgment, the appellants-original writpetitioners are before this Court.

III. SUBMISSIONS OF APPELLANTS:

20. We have heard Shri P.S. Patwalia, learned Senior Counselappearing on behalf of the appellants in the main matter, Shri RanjitKumar, learned Senior Counsel appearing on behalf of the appellants inappeal arising out of SLP(C) No. 5489 of 2022, Shri K.M. Natraj, learnedAdditional Solicitor General (ASG) appearing on behalf of respondentNo.1 in both the appeals, Shri Kapil Sibal, learned Senior Counselappearing on behalf of respondent No.6 in the main matter and forrespondent Nos. 7, 8 and 9 in appeal arising out of SLP(C) No. 5489 of2022 and Shri Gaurav Chopra and Shri Ajay Tewari, learned SeniorCounsel appearing on behalf of the applicant(s)/caveator(s) in both theappeals.

21. Shri Patwalia submitted that, Phase-I Sectors, which constitute“Corbusian Chandigarh”, have now derived a modern heritage value.He submitted that, if any apartment is permitted to be constructed onsingle dwelling unit, it will jeopardize the original character of the city.He further submitted that a perusal of the report of the said Board itselfwould reveal that, though the Draft CMP-2031 provided for there-introduction of the apartments, the said Board had recommendedagainst it, and the said recommendation was accepted.

22. Shri Patwalia submitted that, though the 2001 Rules permittedapartmentalization, on account of hue and cry of public at large, thesame were repealed in the year 2007. He further submitted that the1960 Rules as well as the 2007 Rules specifically prohibited fragmentationor amalgamation of any site or building. However, through a certainmodus operandi, the builders/developers were constructing three AB

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Aapartments on three floors, thereafter selling the said apartments to threepersons, who would enter into a Memorandum of Understanding (MoU).Under the MoU, the person occupying the ground floor and basementwould get 50% share in the plot, the person occupying the first floorwould get 30%, and the person occupying the second or third floor wouldget 20%. He submitted that therefore, what is directly prohibited by law,Bis being indirectly done by the builders/developers. He submitted that,though a specific undertaking is given not to convert the site/building intoapartments, the builders/developers were violating the said undertakingopenly. He further submitted that though the Chandigarh Administrationhas clearly admitted that it was not permitting the construction of suchCapartments, and that under the law, such apartments were prohibited, itwas sanctioning the building plans which ex-facie showed that they werefor the construction of three apartments. He submitted that the HighCourt itself has observed that the Chandigarh Administration has notbeen alive to such illegalities being committed by the unscrupulousbuilders/developers.D23. Shri Patwalia submitted that through such modus operandiof the developers/builders, and inaction on the part of ChandigarhAdministration, what is prohibited in law, is being permitted indirectly.

24. Shri Patwalia further submitted that the CMP-2031 prohibitsEconstruction of apartments. He submits that though CMP-2031 is bindingon 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, theChandigarh Administration in its affidavit states that it does not permitconstruction of apartments, on the other hand, it is permitting the sameFindirectly.

25. Shri Patwalia submitted that when Chandigarh wasconceptualized, it was decided that Phase-I will have bungalows in theresidential areas having a green area in the frontyard and backyard ofthe houses. However, on account of apartmentalisation, the green areasGnow have been converted into concrete areas, and the very concept ofhaving a green city is being defeated.

26. Shri Ranjit Kumar also submitted that the learned Judges ofthe Division Bench of the High Court have erred in holding that mereconstruction of three floors on a private plot and utilization of the sameHas independent units would not amount to fragmentation. He submitted

that, the finding of the High Court that fragmentation will take place onlyif there is a division of the site or division of the building with an elementof exclusive ownership, is patently erroneous. He submitted that theChandigarh Administration is taking a totally contradictory stand. It issubmitted that, on one hand it is admitted by the Chandigarh Administrationthat it is not permissible to build apartments on a plot allotted to a singledwelling unit and on the other hand, it is admitting documents forregistration which, in effect, permit a single plot to be fragmented intothree apartments.

27. Shri Ranjit Kumar submitted that Chandigarh has been includedin the Tentative United Nations Educational, Scientific and CulturalOrganization (UNESCO) World Heritage List due to its outstandinguniversal value, and the same needs to be maintained by prohibitinghaphazard developments which will take away its distinct character.

28. Shri Kapil Sibal also supported the contention as raised onbehalf of the appellants. He submitted that rampant developments arebeing permitted while expanding urban areas without taking intoconsideration its impact on environment. He submitted that when suchdevelopments are permitted, no studies are conducted to find out as towhether the necessary infrastructure like water, sewage, roads etc.exists. He submitted that even in the CMP-2031, it has beenrecommended that an Effective Environment Management Plan has tobe devised for the entire region including Chandigarh, which includesthe environmental strategy, monitoring regulation, institutional capacitybuilding and economic incentives. It is submitted that though such arecommendation is made in the CMP-2031, the ChandigarhAdministration is permitting construction of single dwelling units intoapartments. He submitted that this is a fit case wherein this Court shouldexercise its powers under Article 142 of the Constitution of India, anddirect that Environmental Impact Assessment (for short, “EIA”) is to bemandatorily carried out before permitting expansion of urban areas.

29. All the learned counsel therefore submitted that the impugnedjudgment of the High Court needs to be set aside and a mandamusneeds to be issued to the respondents restraining them from permittingconstruction of apartments on single dwelling units. They furthersubmitted that a direction also needs to be issued to the ChandigarhAdministration to take action against the persons, who, in contraventionof the Rules, are constructing apartments on single dwelling units.

AB

C

D

E

F

G

H

AIV. SUBMISSIONS OF RESPONDENTS:

30. Shri Ajay Tewari, on the contrary, submitted that theapprehension as raised by the appellants are totally unwarranted. It issubmitted that the CMP-2031 duly takes care of the environmentalaspects so as to ensure that the present character of the city on itsBgreenness is not compromised. He submitted that the CMP-2031 wouldreveal that the growth of population in Chandigarh as per the 2011 Censusis less than the predicted growth. He submitted that the growth rate ofmerely 17.10% from the years 2001 to 2011 is the slowest since itsinception. It is submitted that the population in the year 2011 is 10,54,686with an addition of 1,54,051 during the last decade. He further submittedCthat, as a matter of fact, the forest coverage in Chandigarh has doubledin the last 20 years.

31. Shri Tewari submitted that a ‘transferee’ has been defined inthe 1952 Act to mean “a person (including a firm or, other body ofindividuals, whether incorporated or not) to whom a site or buildingDis transferred in any manner whatsoever, under this Act and includeshis successors and assigns”. He therefore submitted that the 1952Act itself permits a transfer to be made to more than one individual andas such, the contention that, there cannot be more than one apartment ina single dwelling unit, is without substance.

E

32. Shri Tewari further submitted that Rule 4 of the ChandigarhLease-Hold of Sites and Building Rules, 1973 (hereinafter referred to as“the 1973 Rules”) provides that the Chandigarh Administration maydemise sites and buildings at Chandigarh on lease for 99 years. It furtherprovides that the lease may be given by allotment or by auction inaccordance with these Rules. He submitted that Rule 17 of the 1973FRules permits the lease to be taken jointly by more than one person. It issubmitted that when the lease itself is permitted to be taken jointly bymore than one person, then there is no merit in the stand that a buildingcannot be constructed on a site having more than one apartment. ShriTewari further submitted that Rule 13 of the 2007 Rules also permits anGallotment to be taken jointly by more than one person. The onlyrequirement in such a case is that the liability to pay premium as well asthe rent or any penalty under these Rules shall be joint and several.

33. Shri Tewari further submitted that a perusal of ChandigarhBuilding Rules (Urban), 2017 (for short, “the 2017 Rules”) which were H

enacted in exercise of the powers conferred by the 1952 Act, wouldalso show that more than one apartment is permitted to be constructedon A single dwelling unit. He submitted that under sub-clause (a) ofClause (22) of Rule 3 of the 2017 Rules, a ‘residential building’ is definedto be “a building used or constructed or adapted to be used whollyor principally for human habitation and includes all garages, orother out-buildings appurtenant thereto”. Under Clause (32) thereof,‘dwelling unit’ has been defined to be “a building or a part thereofwhich is used or is intended to be used by a person or family forhabitation comprising of kitchen, toilet and room”. Clause (82) thereofdefines ‘storey’ as “any horizontal division of a building soconstructed as to be capable of use as a living apartment, althoughsuch horizontal division may not extend over the whole depth orwidth of the building but shall not include mezzanine floor”. Hesubmitted that Rule 4 thereof talks about ‘residential use’, whichexhaustively deals with the entire details with regard to the maximumheight of the building, maximum area, minimum area and the courtyards.

34. Shri Tewari submitted that the High Court has rightly held thatan apartment can be construed to be such only if it was an apartment asper the meaning of apartment given in the 2001 Rules. He submittedthat the provisions of the 2001 Rules are similar to the provisions of theHaryana Apartment Ownership Act, 1983. He submitted that under the2001 Rules, each apartment owner is entitled to the exclusive ownershipand possession of the apartment in accordance with the declaration.However, when more than one person jointly construct a building on aplot and occupy one floor each, they are not entitled to exclusive ownershipof the apartment but have shares in the joint property. The learned Senior

Counsel relies on the judgment of this Court in the case of KochkunjuNair v. Koshy Alexander and Others[3]in support of the propositionthat all co-owners have equal rights and coordinate interest in the property,though their shares may be either fixed or indeterminate. He submittedthat this Court has held that each co-owner has, in theory, an interest inevery infinitesimal portion of the subject matter, and each has the right,irrespective of the quantity of his interest, to be in possession of everypart and parcel of the property, jointly with others. It is submitted that assuch, the modus operandi adopted is wholly permissible, whereby, eachof the co-sharers would be entitled to be in possession of the part assignedto them jointly with others. He relies on the judgment of the Privy Council3 (1999) 3 SCC 482

AB

C

D

E

F

G

H

Ain the case of Hardit Singh and Others v. Gurmukh Singh andOthers[4]in support of the proposition.

35. Shri Tewari relies on the judgment of the Division Bench ofthe High Court in the case of Sant Ram v. Daya Ram and Others[5]insupport of the proposition that though the Mitakshara School of HinduBLaw recognized ownership of each co-parcener over the whole of jointproperty and over each part thereof, which bears some similarity to jointtenancy of English law; the Dayabhaga School adhered to the doctrineof ownership in specified shares in the undivided property having similarfeatures as in tenancy in common. It is therefore submitted that theco-sharers are entitled to jointly construct a building as per their ownCshares. It is submitted that this Court in the case of Jai Singh andOthers v. Gurmej Singh[6]has approved this legal position. Shri Tewarifurther relies on the judgment of this Court in the case of Tilak RajBakshi v. Avinash Chand Sharma (Dead) Through LegalRepresentatives and Others[7]in support of the proposition thatDassignment in favour of a party would not amount to fragmentation.

36. Shri Tewari, in a nutshell, submitted that the dwelling unitscannot be construed to be the same as apartments under the 2001 Rules,and therefore it is permissible for more than one person to construct abuilding jointly and occupy the shares of building as per their respectiveEshares. It is submitted that, when the Rules and Provisions permittingthree storeys are not challenged, it would not be permissible for theappellants to contend that the construction of three storeys, whereinthree different persons reside, is not permissible in law. It is submittedthat the CMP-2031 has considered everything and further that the saidCMP-2031 has also not been challenged.

F

37. Shri Tewari submitted that if the contention as raised on behalfof the appellants is accepted, then an anomalous situation would ariseinasmuch as co-owners who are part of one family would be entitled toconstruct three apartments whereas others could not. This would leadto a situation where some co-owners are superior to others.

G

38. Shri Gaurav Chopra submitted that there is nothing in lawwhich prohibits three strangers to purchase a plot from one person and 4 1918 SCC OnLine PC 25 AIR 1961 P&H 528

6 (2009) 15 SCC 747

H7 (2020) 15 SCC 605

then develop the said plot by constructing a building having three differentfloors and occupy the said floors. He submitted that there is no bar forthe same either under Rule 14 of the 1960 Rules or Rule 16 of the 2007Rules. He submitted that if the contention of the appellants is accepted,it would lead to an anomalous situation wherein a person, who has in abona fide manner purchased a share of a building and consequentlyoccupied a floor of such a building, would be deprived of selling thesame. He submitted that such an inference would put unreasonablerestrictions on the rights of the person to deal with the property. ShriChopra submitted that a perusal of the CMP-2031 itself would revealthat the original concept itself included re-densification of Phase-I inorder to accommodate the growing population of the city. The learnedSenior Counsel submitted that the Expert Committee constituted forpreparation of CMP-2031 has considered all these aspects. He submittedthat the CMP-2031 itself would show that Phase-I (Sectors 1 to 30) hada holding capacity of 34 persons per acre whereas the present density isonly 26 persons per acre. It is therefore submitted that the CMP- 2031itself would reveal that there was a scope for additional units in Phase-I.He submitted that when the CMP-2031, which is a result of an elaborateexercise by the experts in the field, permits such a development, there isnothing which would prohibit such development.

39. Shri Chopra further submitted that Section 5 of the Transferof Property Act, 1882 (for short, “the TP Act”) itself permits transfer ofproperty to one or more living persons. He submitted that Section 7 ofthe TP Act further permits a person to transfer such property eitherwholly or in part. It is contended that Section 10 of the TP Act providesthat any condition or limitation absolutely restraining the transferee or any other person claiming under him from parting with or disposing ofhis interest in the property is void. It is further submitted that Section 44of the TP Act also permits one of two or more co-owners of immoveableproperty to transfer his share of such property or any interest therein. Itis submitted that if the contention of the appellants is accepted, it wouldbe contrary to the provisions of the TP Act.

40. Shri K.M. Natraj submitted that ownership of a building isdifferent from ownership of a land. He therefore submitted that it is notnecessary 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 beconstructed and owned by three different persons. He relies on the AB

CD

E

F

G

H

Ajudgments of this Court in the cases of Dr. K.A. Dhairyawan andOthers v. J.R. Thakur and Others[8]and Rev. FR. K.C. Alexander v.State of Kerala[9]. He also relies on the judgment of the Karnataka HighCourt, Bombay High Court and Rajasthan High Court in the cases ofR.G. Hiremath and Another v. T. Krishnappa[10], Laxmipat Singhaniav. Larsen and Toubro, Ltd.[11]and Saiffuddin v. The Commissioner ofBIncome Tax (129)[12]. The learned ASG also submitted that when thebuilding regulations permit construction of three floors, the relief as soughtby the appellants cannot be granted.

V. STATUTORY PROVISIONS:

C41. For appreciating the rival contentions, it will be necessary torefer to certain statutory provisions.

42. The 1952 Act came to be enacted for facilitating theconstruction of the New Capital of Punjab at Chandigarh. The Statementof Objects and Reasons of the 1952 Act would reveal that the said ActDwas enacted for vesting legal authority with the State Government toregulate the sale of building sites and to promulgate building rules on thelines of Municipal Bye-laws so long as a properly constituted local bodydoes not take over the administration of the city. Clause (k) of Section 2of the 1952 Act defines ‘transferee’, which reads thus:

“2. Definitions.-E

…………..

(k) “transferee” means a person (including a firm or other bodyof individuals, whether incorporated or not) to whom a site orbuilding is transferred in any manner whatsoever, under this ActFand 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 afirm or other body of individuals, whether incorporated or not, to whoma site or building is transferred in any manner whatsoever, under this ActGand 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.

8 [1959] SCR 7999 (1973) 2 SCC 73710 1977 SCC OnLine Kar 9611 1949 SCC OnLine Bom 11H12 1985 SCC OnLine Raj 97

It is therefore submitted that there could be no impediment in theconstruction of three apartments on three floors which could be occupiedby three different persons. On the contrary, it is sought to be urged onbehalf of the appellants that the term ‘person’ has to be used applyingthe principle of ejusdem generis. It is submitted that the words “otherbody of individuals, whether incorporated or not” are preceded by aword ‘firm’ and as such, it should be construed that the said term wouldbe applicable only to a company, corporation, society etc.

44. Section 3 of the 1952 Act empowers the Central Governmentto sell, lease or otherwise transfer, whether by auction, allotment orotherwise, any land or building belonging to the Government of Chandigarhon such terms and conditions as it may subject to any rules that may bemade under this Act, think fit to impose.

45. Section 4 of the 1952 Act empowers the Central Governmentor the Chief Administrator to issue such directions for the purpose ofproper planning or development of Chandigarh as may be considerednecessary with regard to matters mentioned in Clauses (a) to (f) thereto.Sub-section (2) of Section 4 thereof provides that every transferee isliable to comply with the said directions.

46. Section 5 of the 1952 Act provides that no person can erect oroccupy any building at Chandigarh in contravention of any building rulesmade under sub-section (2) thereof. Under sub-section (2) of Section 5thereof, the Central Government is empowered to make rules to regulatethe 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 Governmentto make rules for carrying out the purposes of the said Act.

48. The 1960 Rules came to be notified on 8[th] March 1960. Rule14 of the 1960 Rules reads thus:

“14. Fragmentation - [Section 3 and 22 (2)(a)] - Nofragmentation or amalgamation of any site or building shall bepermitted:

Provided that amalgamation of two or more adjoining sitesshall be permissible only in the case of commercial or industrialsites subject to the condition that the revised plans are approvedby the competent authority, prior thereto.

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Provided further that fragmentation of sites shall be permittedonly in case of the persons applying for conversion under the“Chandigarh Conversion of Land Use of Industrial Sites intoCommercial Activity/Services in Industrial Area, Phase-I and II,Chandigarh Scheme, 2005, notified vide

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

49. Subsequently, the 2001 Rules came to be notified on 20[th]December 2001. It will be relevant to refer to certain provisions of thesaid Rules, which read thus:

“2. Definitions:

(a) “Apartment” means each sub-division of a building dullyrecognized by the Estate Officer, alongwith the proportionate sharein common areas and common facilities, as well as any otherproperty rights appurtenant thereto, shall constitute an Apartment.

(b) “Building” means any construction or part of construction orproposed construction in Chandigarh as defined in Clause (x) ofRule 2 of the Punjab Capital (Development and Regulation)Building Rules, 1952.

3. Sub-division of Building:

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

(2) A building may be sub-divided through a declaration made bythe owners/lessees to the Estate Officer in the prescribed form(Form- D). The Estate Officer shall, if he is satisfied with thecompleteness and correctness of information provided with thedeclaration 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 theAdministration from time to time.

The recognition of each sub-division as an apartment by the EstateOfficer under these rules shall be accorded by way of a freshletter of allotment or a fresh conveyance deed, as the case maybe, in suppression of the previous letter of allotment or conveyancedeed. Such letter of deed shall recognize the owners/lessees ofthe apartment as the owners/lessees thereof, who shall be liableto comply with all the provisions of the Capital of Punjab(Development and Regulation) Act, 1952, and rules and regulationsand orders framed thereunder. All the covenant and liabilitiescontained in the original allotment letter and in the conveyancedeed pertaining to the building or site, shall be construed to becontained in the subsequent letter or deed, as the ease may be,even though no specific mention may have been made therein.

(3) Each sub-division, after it has been recognized as an apartmentby the Estate Officer, consequent upon the filing of prescribeddeclaration, shall be the sole and exclusive property of the declaredowners/lessees. Such owners/lessees’s shall be fully andexclusively responsible and liable for complying with all provisionsof the Capital of Punjab (Development and Regulation) Act, 1952,rules and orders framed thereunder, and covenants of the allotmentletter and conveyance deed pertaining to the site or the building.All these provisions of rules, orders and covenants shall apply,pari passu, to the apartment and to the owners/lessees thereof, asthey did and would have, to the site or building and the owners/lessees thereof.

(4) Each apartment shall be entitled to separate utility connectionssuch as water supply, sewerage and electricity, subject to buildingregulations.

(5) Where sub-divisions of a building with more than one storeyhave been allotted, sold or leased by the Estate Officer, the EstateOfficer may after giving notice to the owners/lessees of suchsub- divisions, declare such sub-divisions as apartments, to which the provisions of these rules shall apply.

4. Sub-Division of Residential Buildings:

(1) Any residential building situated on a plot size of less than1400 square yards may be sub-divided into separate dwelling units A

B

C

D

E

F

G

H

A

with not more than one dwelling unit on each floor of the building.Each such dwelling unit shall constitute a sub-division.

(2) The basement, if any, allowed in a residential building shall notconstitute a separate sub- division. The basement shall form apart of the sub- divisions on the ground floor. In case more thanBone sub-division is allowed on the ground, each such sub-divisionmay have a separate basement if building regulations so permit.Except in the case where the basement provides for facilitiessuch as parking area at the end or other plant and equipmentrequired for apartments in the building, the basement or portionstherein may constitute a part of the sub-division on floors, other,Cground floor.

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

D

(4) A residential building on a plot of 1400 square yard or moremay be sub-divided into two dwelling units on each floor providedthat building regulations so permit.”

50. However, the 2001 Rules came to be repealed on 1[st] October2007. Immediately thereafter, the 2007 Rules came to be notified on 7[th]ENovember 2007. Rule 16 of the said Rules reads thus:

“16. Fragmentation/Amalgamation.

No fragmentation or amalgamation of any site or buildingshall be permitted.

F

Provided that amalgamation or two or more adjoining siteswith the same ownership shall be permissible only in the case ofcommercial or industrial sites subject to the condition that therevised plans are approved by the competent authority, priorthereto.

G

Provided further that fragmentation of any site shall beallowed if such fragmentation is permitted under any schemenotified by the Administration.”

51. It could thus be seen that Rule 16 of the 2007 Rules also doesnot permit fragmentation/amalgamation of any site or building. Insofar H

as commercial or industrial sites are concerned, amalgamation is permittedsubject to the condition that the revised plans are approved by thecompetent authority, prior thereto. However, the second proviso alsopermits fragmentation of any site if such fragmentation is permitted underany scheme notified by the Administration.

A

VI. FINDINGS OF THE HIGH COURT:

B

52. In the impugned judgment, what has been held by the HighCourt is that, though in view of Rule 16 of the 2007 Rules, no floor-wisesale of property is permissible and though, it does not permit a residentialhouse to be converted into apartments, and that though no sale of adefined portion or part of the building is permissible, however, mereconstruction of three floors on a private plot and utilization of the sameas independent units would not amount to fragmentation. The High Courthas held that fragmentation will take place only if there is a division ofthe 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 the2007 Rules.

C

D

C

D

53. The High Court has held that for holding that apartmentalizationis being carried out, certain requisites have to be met. In view of theHigh Court, the following factors would be necessary for holding that itamounts to apartmentalization:

E

(i) “There has to be a sub-division of a building duly recognizedby the Estate Officer along with proportionate share incommon areas and common facilities;

(ii) Each sub-division of a building to be a distinct, identifiableproperty to which the owner/lessee shall have title; F

(iii) The recognition of each sub-division as an apartment bythe Estate Officer would be accorded by way of a freshletter of allotment or a fresh conveyance deed; and

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

54. The High Court held that, in the present case, the pre-requisitesnoticed hereinabove were missing. The High Court held that, by virtueof sale of share(s) by a co-owner and thereafter, the purchaser/vendeeoccupying a specific portion of the building on the basis of an internal H

Aarrangement/understanding, sub-division of the building as provided underthe 2001 Rules does not take place. It held that the specific portionunder the occupation of a co-owner is not accorded any recognition bythe Estate Officer in any manner. It also held that the co-owner alsodoes not become the sole and exclusive owner of such specific portionunder his occupation.B

55. As such, the High Court though holds that what was permissibleunder the 2001 Rules, became impermissible after its repeal andnotification of the 2007 Rules, it held that construction of three differentfloors in a building or a site and occupation of the same by three differentpersons would not amount to apartmentalization inasmuch as the sameCdoes not have recognition of the Estate Office.

56. The 2001 Rules, in effect, permitted the apartments to beconstructed on a site and permitted sub-division of a building as a distinct,identifiable property to which the owner/lessee would have title alongwith proportionate share in the declared common areas and commonDfacilities. However, on account of the objections of the residents ofChandigarh, the 2001 Rules were repealed so as to prevent furtherapartmentalization. However, it is clear from the modus operandi ascould be seen from the various documents placed on record that thebuilders/developers are, in fact, continuing to do the same thing whichEwas permissible under the 2001 Rules and became impermissible afterrepeal thereof. The result of the judgment of the High Court is that,though the construction of apartments is prohibited, still the constructionof a building and converting it into apartments would not be impermissiblesince the same would not be apartments within the meaning of the 2001Rules.FVII. REPORT OF THE BOARD OF “INQUIRY ANDHEARING”:

57. It will further be relevant to note that Chandigarh Administrationhas notified the CMP-2031. It will be relevant to note that in the draftGCMP-2031, there was a provision for apartments. For considering theobjections to the provisions made in the draft CMP-2031, the said Board,consisting of Senior Officers of the Chandigarh Administration, wasconstituted on 10[th] November 2013. The report of the said Board wouldreveal that Chandigarh was conceived as “Garden City” and in view ofthe socio-economic conditions and living habits of the people, verticalHand high-rise buildings were ruled out. It would further reveal that Le

Corbusier incorporated principles of light, space and greenery in theplan and used human body as the metaphor. It would also reveal thatChandigarh has been planned as a low-rise city and has been sodeveloped that even after sixty years of its inception, its original concepthas been retained to a large extent. The said Board, while submitting itsreport, has laid down certain guiding principles, which are thus:

“GUIDING PRINCIPLES

The objections received by the Administration have beenconsidered by the Board of Inquiry keeping in view the followingguiding principles:

1. Chandigarh being the capital of Punjab and Haryana is anadministrative city and has to be retained as such. Industrialgrowth in the city needs to be limited to ensure its economicsustainability.

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

3. The northern sectors of Chandigarh (Corbusian inChandigarh) should be preserved in their present form asfar as possible. As far as re-development of some specificpockets is concerned, that can be done keeping properperspective in mind. Any redevelopment in northern sectors(Phase-1) should only be done keeping therecommendations of the Expert Committee on Heritage inmind.

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

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

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

A

B

C

D

E

F

G

H

A7.The architecture of the city needs to be preserved andretained in sync with Le Corbusier’s vision.

8. The low-rise character of the city needs to be maintained.9.The focus needs to be on building an efficient public transportsystem and augmenting parking spaces in the city.

B

10. Chandigarh has limited land and to preserve the integrity ofthe original concepts, it needs to be ensured that the city isnot pressurized beyond its holding capacity.

11. The peripheral area and the Tri-City are intrinsically linked.COne cannot be successfully planned or implemented withoutalso looking at the other. Specific plans for every village inthis area are a necessity and the overall plan mustaccommodate the growing requirements along with therequirement for ecological conservation of the naturalresources in the vicinity.

D

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

13. Chandigarh is today known throughout the world for beingone of the best planned urban environment. In large part, itis due to the high proportion of open space, social facilities,Ecivic amenities and infrastructure per living unit. Theintroduction of apartment rules, by itself does not have anyprovision to add these essential services and facilities withinthe existing built-up environment. It will only add residentialdensity while ignoring other urban infrastructure therebyFbeing detrimental to the city environment and will only leadto the long term decline of the city.”

58. It can thus clearly be seen that the said Board has consideredthat Chandigarh has a heritage value and it is important to preserve andmaintain the integrity of the original concepts and planning postulates ofGSun, Space and Verdure. It also emphasized that the northern sectors ofChandigarh (Corbusian Chandigarh) should be preserved in their presentform as far as possible. It also states that any redevelopment in thenorthern sectors (Phase-I) should only be done keeping therecommendations of the Heritage Committee in mind. It further providesthat the same practice as followed while developing the New Delhi H

H

Municipal area (Lutyen’s Delhi) be followed in respect of the city ofChandigarh. The efforts should be to keep the character of the cityintact. It further emphasizes that the architecture of the city needs to bepreserved and retained in sync with Le Corbusier’s vision. It states thatthe low-rise character of the city needs to be maintained. It states thatChandigarh is today known throughout the world for being one of thebest planned urban environment. It states that the introduction of 2001Rules by itself does not have any provision to add these essential servicesand facilities within the existing built-up environment. It states that it willonly add residential density while ignoring other urban infrastructurethereby being detrimental to the city environment and will only lead tothe long-term decline of the city.

59. Chapter III of the said Report elaborately deals with theobjections opposing redensification in Phase-I Sectors and reintroductionof the 2001 Rules in Chandigarh. It will be relevant to refer to therecommendations of the said Board, which read thus:

“CHAPTER-III: RECOMMENDATIONS OF THEBOARD

3.1. RESIDENTIAL

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

“The Chandigarh Apartment Rules to be reintroduced: Subdivision of residential plots of 1,000 sq. yards and aboveinto two dwelling units on each floor shall be permitted.The residential buildings on plots of less than 1000 sq. yardswill be permitted floor-wise sub-division into separatedwelling units with not more than one dwelling unit on eachfloor of the building. The above provisions are to be allowedwithin the prevailing FAR and Ground Coverage norms.”P-78 of CMP- 2031

The representationists have vehemently objected to theproposals contained in the Draft Master Plan regardingredensification and introduction of Apartment Rules. This Board AB

C

D

E

FG

H

A

B

C

D

E

F

G

H

had detailed deliberations on this issue and the views are asfollowing.

Rapid growth of urban population is predicted by censusand planning authorities: Chandigarh being the headquarters ofPunjab and Haryana along with being a major gateway of HimachalPradesh is uniquely positioned for exponential growth as it is anextremely attractive destination for all segn1ents of the population.With rapidly growing population that lives in slums and unauthorisedresidential developments within the periphery area along withincreasingly unaffordable housing for lower and middle classfamilies, we feel that there is necessity to increase the housingstock for the success of the city.

Perhaps with this objective in mind, the draft master planmakes a series of recommendations for increasing the housingstock of the city. One of these is the redensification of Phase Isectors and the introduction of the Apartment Rules. A morecareful examination of the facts will reveal that there exist severalreasons why the introduction of Apartment Rules is not anappropriate solution to the city’s requirements of affordablehousing. To enumerate a few:

i)Chandigarh city has a distinct heritage value from the pointof view of city architecture and the basic concepts of sun,space and verdure in planning. An expert committee onheritage was constituted by GoI, whose recommendationshave already been approved by the Government of India.The ExpertHeritage Committee has recommended that thenorthern sectors of Chandigarh (Corbusian in Chandigarh)should be preserved in their present form as far as possible.Specifically it has been recommended that no furtherenhancement should be given in FAR. Therefore theconcept of redensification in general will go against theheritage of the city. As for as re- development of somespecific pockets is concerned, that can be done keepingproper perspective in mind. General redensification is notrecommended. The expert committee has taken a seriousnote of the relaxations in FARs and building controls alreadygiven earlier and has recommended that they should berevoked.

ii)An accurate audit of existing residential plots will revealAthat many plots are inhabited by joint families,multi-generation families, have been internally divided andrented out and have legal disputes of ownership etc. Furtherthere is a vast majority of residents who chose to live inChandigarh due to the sub- urban character of the city andBwant to live in the present sort of system without thearrangement of group housing or apartment configurations.The present representationists typically belong to this class.All these properties will not be available for redevelopmentinto apartment configurations irrespective of what isproposed in the master plan.C

A

C

iii)Increasing density and especially housing density is anextremely important task and challenge for the plannersand administrators of the city. It is something which cannotbe left to the vagaries of market to determine the impact ofdensity on the city and its infrastructure. Individualdevelopments of apartments in plots will result in increasein density in the areas of the city that are most profitable tothe developers rather than where these housing units arerequired.

D

iv)The introduction of apartment rules will most essentiallycreate apartments in the higher cost bracket of saleableunits and is unlikely to create any low income or mid incomehousing. The demand in the city is for lower income andmiddle income housing rather than housing for the rich andaffluent. A situation like this will predictably lead toproliferation of slums required to service the higher densityof highest income group people.

E

F

v)Location of the redevelopment will also be an adhoc situationdepending on individual owners’ prerogative rather than aformulated or predictable distribution of apartment units inthe city. City planners, therefore, will have no advanceknowledge where and in what number the population densitywill increase. The planning for support and supplyinfrastructure, therefore, will also not be able to anticipategrowth. This is, therefore, the least desirable and surely themost inefficient and expensive way to add infrastructure tothe city.

G

H

Avi)There is a strong possibility that the introduction of theapartment rules will lead to a further increase in real estateprices. This will be in stark contradiction to the originalaspect of creating more affordable housing, whereby thecharacter of the city will be lost and gains will also not besignificant.

B

vii)Chandigarh is today known throughout the world for beingone of the best planned urban environment. In large part, itis due to the high proportion of open space, social facilities,civic amenities and infrastructure per living unit. Theintroduction of apartment rules, by itself does not have anyCprovision to add these essential services and facilities withinthe existing built up environment. It will only add residentialdensity while ignoring other urban infrastructure therebybeing detrimental to the city environment and will only leadto the long term decline of the city.

D

Keeping in mind these elements, it will be prudent to annuland negate any efforts to revive the Chandigarh Apartment Rulesin its current form. This will not serve to create a large stock ofavailable housing will not increase affordability. It will not serveMIG and LIG and will add to unplanned and unregulated growthEof population density without any matching increase in social andphysical infrastructure or amenities. The only beneficiary to thisscheme will be a handful of developers which would be detrimentalto the existing and future residents of the city. In conclusion, whilethere is an urgent requirement for increase of affordable housingstock in Chandigarh, the Apartment Rules is a poor and whollyFinadequate instrument for this purpose.

The Board, therefore, recommends that all referencesin the draft Master Plan in respect of the reintroduction of‘Apartment Rules’ should be deleted and redensificationof any government residential/institutional pocket inGPhase-I sectors should only be done with the prior approvalof the Chandigarh Heritage Conservation Committee.”

60. It is thus clear that though an attempt was made in the draftCMP-2031 to permit apartments on residential plots, the same wasvehemently opposed. The Report considered the recommendations ofHthe 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 givenin FAR. It also considered that the concept of redensification in generalwill go against the heritage of the city. It has further taken intoconsideration that the Heritage Committee has taken a serious note ofthe relaxations in FARs and building controls already given earlier andhas recommended that no further relaxation be given and has alsorecommended that the relaxations already granted should be revoked.

61. The said Board further considered that individual developmentof apartments in plots will result in increase in density in the areas of thecity that are most profitable to the developers rather than where thesehousing units are required. It further considered that the introduction ofthe 2001 Rules will most essentially create apartments in the higher costbracket of saleable units and is unlikely to create any low income ormiddle income housing. It considered that the demand in the city is forlower income and middle- income housing rather than housing for therich and affluent. It further considered that a situation like this willpredictably lead to proliferation of slums required to service the higherdensity of highest income group people. It further considered that theplanning for support and supply of infrastructure would not be sufficientto meet the growth in population density on account of apartmentalization.

62. The said Board also considered that the introduction of the2001 Rules would lead to further increase in real estate prices. Itconsidered that this will be in stark contradiction to the original aspect ofcreating more affordable housing, whereby the character of the city willbe lost, and the gains will also not be significant. It considered thatChandigarh 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. Itconsidered that the introduction of the 2001 Rules by itself does nothave any provision to add these essential services and facilities withinthe existing built-up environment. It stated that this will only add residentialdensity while ignoring other urban infrastructure thereby being detrimentalto the city environment, and will only lead to the long-term decline of thecity.

63. It could thus be seen that the Report clearly opposedreintroduction of the 2001 Rules. The Report has been duly acceptedand all references regarding re-introduction of the 2001 Rules have beendeleted in the Final CMP-2031, which was notified on 23[rd] April 2015.

AB

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AVIII. CHANDIGARH MASTER PLAN-2031:

64. Clause 1.2 of the CMP-2031 would reveal that the originalplan of Phase-I divided the city into a grid of 30 sectors with the CapitolComplex as well as the Civic Centre. Sector 17 was designed as theCentral Business District. It provided that, the greenbelt at the centreBran north east to south east. Wide roads were planned in a systematichierarchy providing structure to the city which has well planned facilities.Landscaped green avenues give it amenity value. It states that the FirstPhase which is considered as city’s Historic Core was designed forpopulation of 1,50,000 in low rise plotted development. Phase-II fromSectors 31 to 47 for the remaining targeted 3,50,000 was with 4-storeyedCapartments for government employees with an increase in the ratio ofsmaller plots/lesser open areas/nearly four times increase in density.Though there is a reference that the original concept itself includedredensification of Phase-I, no details with regard to the same wereavailable.D65. A perusal of the CMP-2031 would reveal that while finalizing D65. A perusal of the CMP-2031 would reveal that while finalizingthe CMP-2031, the Expert Committee took into consideration thepreservation of original concept of the plan, maintaining the basiccharacter of the town, preserving ecology and environment, heritagestatus of the city, promoting sustainable urban development etc. TheExpert Committee also took into consideration the Report of the HeritageECommittee constituted by the Government of India under the chairmanshipof His Excellency, the Administrator, UT Chandigarh and the approvedletter of the Government of India dated 23[rd] December 2011.

66. Clause 1.9 of the CMP-2031 provides the guiding principlesfor comprehensive CMP-2031. Clause (v) thereof states thatFChandigarh’s architecture shall preserve the vitality of all public andprivate buildings. Public open spaces shall be created as vibrantcommunity spaces, and the left-out monuments envisaged by LeCorbusier shall be completed. Urban design shall be the guiding principlefor improving the quality of inner and outer spaces. It also considers thatone of the challenges for Chandigarh was the high degree of trafficGcongestion.

67. Clause 1.12 of the CMP-2031 would reveal that Chandigarhhas a universally acclaimed rich ‘Heritage’ and ‘Green City’ character.68. Clause 4.5 of the CMP-2031 states the salient features of theChandigarh Plan. It states that the function of Living occupies primaryH

place and has been organized into a cellular system of sectors based onthe concept of a neighbourhood unit. Each sector, with the exception ofsome sectors, has a size of 800m × 1200m which was determined on theparameter of providing all amenities, i.e., shops, schools, health centresand places of recreation and worship within a 10-minute walking distanceof the residents. The originally planned population of a sector variedbetween 3000 and 20,000 depending upon the size of plots, the topographyof the area, and the urban design considerations. Each sector is introvertin character and permits only four vehicular entries into its interior toprovide a tranquil and serene environment conducive to the enrichmentof life. It also emphasized on family life and community living. It statesthat Chandigarh is planned as a green city with abundance of openspaces. It ensures that every dwelling has its adequate share of thethree elements of Sun, Space and Verdure. The location of green beltwas in the north- south direction to link all sectors with the Shivalikrange of hills/mountains. The city was planned as a low-rise city andeven after sixty years of its inception, it still retains the original conceptto a large extent.

69. Clause 5.3 of the CMP-2031 deals with density. It states thatthe population density during the last five decades has increased 9 fold,from 1051 to 9252 persons per sq. km. It states that Chandigarh shallcontinue to record higher densities with further population growth, whichposes a challenge for maintaining the quality of life and providing basicand essential services even to its poorest residents as visioned by thecity’s planners.

70. Clause 5.3.2 of the CMP-2031 states that though Phase-Iwas planned to be low density development with 9000 acres of landhousing 1,50,000 population, i.e., the density of 16 persons per acre, asper 2001 Census, it was 26 persons per acre. It states that by the year2001, the density of Phase-I had already exceeded the designed densitywhereas that of Phase-II sectors was the same as was designed. Itstates that the city still has reasonable capacity to accommodate additionalpopulation. It further states that the density pattern is likely to undergoconsiderable change in the years to come with the city recording highergrowth and development. As per the existing trends, the sectors fallingin Phase-I shall continue to have lower density as compared to the sectorsfalling in Phase-II.

71. Clause 5.7.4 of the CMP-2031 deals with the holding capacityof UT Chandigarh based on Master Plan recommendations. It A

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Aspecifically states that in order to maintain the basic character of thecity as an administrative city, unnecessary increase in the populationshould be avoided. It states that with the coming up of new towns in theperiphery of Punjab and Haryana, the excess population can be easilyaccommodated in those towns. It states that since the land stock inChandigarh is limited, the uses related to governance and administrationBshould get priority in the allocation of land. It states that additionalpopulation will have to be diverted to the adjoining settlements by viewingthe entire context of planning in the regional framework. However, thetable in the said clause, dealing with private plots, shows the total units tobe 22,788 and number of dwelling units as triple this number, at 68,364.C72. Clause 6.3 of the CMP-2031 deals with private housing. Itstates that nearly 1/3[rd] of the private plots have an area of one kanal orabove. It states that the first phase of the city had low density withresidential plots ranging from 5 marlas to 8 kanals. The second Phasehas much higher density with a switch mostly to three to four storey Dflats with the largest plot size being 2 kanals.

73. It will be pertinent to refer to the relevant parts of Clause 6.12of the CMP-2031, which read thus:

“6. HOUSING IN CHANDIGARH

………..

E6.12 MASTER PLAN PROPOSALS

………..

Approval of the Chandigarh Heritage ConservationCommittee Since Phase I sectors have been recommended for Heritage status,Fthe re-utilization of the identified housing /institutional pockets inthe first phase shall be undertaken with the prior approval of theChandigarh Heritage Conservation Committee.

………..

ADDITIONAL FAR AND GROUND COVERAGE TOGPRIVATE HOUSING

The Chandigarh Administration vide notification dated 16/10/2008has already permitted increased ground coverage and FAR for allsizes of private residential plots and introduced the concept ofzoning in place of frame control. Under these regulations, all privateplots can build upto 3 floors with each floor having potential of H

having an independent unit. There are approximately 23000 privateplots of all categories within the sectoral grid of the ChandigarhMaster Plan. Assuming that each plot will eventually be built upto3 storeys with one unit per floor, the total dwelling units availablewill be 69000 which can house approximately 3,00,000 population.”

74. Clause 19.1 of the CMP-2031 considered the majorrecommendations, some of which include thus:

“19 CHANDIGARHS HERITAGE

………

19.1 THE MAJOR RECOMMENDATIONS INCLUDE

1. The city’s monumental architecture, principles of townplanning of Sun, Space, and Verdure, as enunciated byLe Corbusier, along with urban design, landscaping, honestyin the use of construction materials, like shuttered concreteand exposed brick-work, ought to be preserved as ModernHeritage of Universal Value for which Chandigarh hasbecome known throughout the world.

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

3. The philosophy, plans and approach envisioned by PanditJawahar Lal Nehru with regard to the new city should notbe lost sight of and kept in mind while taking the steps forthe above purposes.

4. The philosophy, plans and designs propounded and used byLe Corbusier, while building the city, should not be allowedto be affected and should be kept in mind while protectingpreserving, maintaining and expanding heritage structures.

5. Efforts should be directed to retain the essence of theoriginal Plan of the city and as such the following isrecommended:

–Chandigarh shall remain an Administrative City.

–Chandigarh shall retain the essential planningpostulates of Sun, Space, and Verdure.

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D

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A–Chandigarh shall be a Low-Rise City.

–Chandigarh shall be a Green City.

6. Corbusian Chandigarh title to the first phase of the citywhich is the most representative of Le Corbusier’s thoughtand philosophy is truly worthy of recognition for its ModernBHeritage Value. The sectors 1 to 30 planned and detailedout by the original team in fulfillment of the CIAM principlesof Living, Working, Care of Body and Spirit and Circulation.

7. Heritage status to Sector 22, built as the first typical sectoron the concept of the neighbourhood and Heritage status toCSectors 7 and 8 as a tribute to the architect planner, AlbertMayer.

No development must be allowed that may jeopardizetheir original concept.

D8.Preservation of the concept of a neighbourhood unit, nofurther enhancement in FAR, supplementing the V7s withan efficient public transport system, execution of thepedestrian footpaths and cycle tracks, augmenting parkingspaces in the city, development of villages and slumrehabilitation, regular upkeep.

E

9. The Committee hasalso made recommendations for aMaster Plan for Chandigarh to ensure regulateddevelopment of the city’s Inter State Regional Plan andmechanism for its implementation, City Development Plan,Solar City, restoring the city’s strong imageability, UrbanFDesign, restoration of Architectural Control/Frame Control,Design, Advertisement Control Order.

10. Revitalization of the City Centre, construction of the ElevenStoried Tower.

11. Holistic planning of Capitol Complex to address immediateGand future requirements, no scope for additional buildingswithin campus completion of the incomplete projects of theCapitol Complex, including the Museum of Knowledge, theMartyrs’ Memorial, revitalization of the plaza, campuslighting and illumination to highlight building edifices,Haddressing the security issues to enable comfortable

visitor access to the Capitol Complex. The concern ofdevelopment on the North of Chandigarh and the peripheralareas around the Capitol Complex.

A

12. Redensification of pockets of Government Housing Theconcept of Redensification has not been recommended inthe Master Plan. Instead pockets identified by the ExpertBHeritage Committee have been recommended forReutilisation if required. (see Chapter on Housing).

13. Prior Concept Approval for identified private andGovernment buildings with the principal objective to maintaina harmonious urban form of Chandigarh and in keeping withits original concept, Prior Concept Approval of newbuildings and/or additions-and- alterations in old ones ofidentified private and government properties has beenrecommended. Following are the parameters for imposingthe regulation of prior concept approval:- C

D

•Since many private buildings fall along importantarteries, namely, V3s and V4s, constituting major partof Chandigarh’s urban imageability, there is an urgentneed to regulate individualistic/idiosyncratic use ofweird forms, senseless geometry, garish colours andunaesthetic materials to preserve the originalEcharacter of the city besides retaining sanity inarchitectural and urban designs.

•The second criterion is the building’s architecturalimportance and the individual professional standingof the architects who constituted the foreign team ofarchitects.

F

•The third parameter is the location of the building,which is crucial because an ill- designed structurecan become an eyesore whereas a sensitive designthat respects its architectural legacy would be alandmark asset in many ways.

G

•Similarly, the development/additions and alteration ofgreen belts should be done sensitively and in the samespirit as that of the original plant.

A•Location of Mobile Towers is very important fromthe urban design point of view and as such, this toohas been recommended for prior concept approval.

14. Constitution of the Chandigarh Heritage ConservationCommittee.

B

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

75. Clause 19.11 of the CMP-2031 talks about the inclusion ofChandigarh in the UNESCO World Heritage List due to its outstandinguniversal value. It will be relevant to refer to the said recommendations,Cwhich are thus:

“19.11 INCLUSION OF CHANDIGARH IN THE UNESCOWORLD HERITAGE LIST DUE TO ITS OUTSTANDINGUNIVERSAL VALUE

RECOMMENDATION OF THE MASTER PLANDCOMMITTEE

It has been perceived that Chandigarh’s inscription on Worldheritage list would bring many benefits as the city would join aselect list of other modern movement cities/urban areas currentlyinscribed on the UNESCO’s heritage list.

E

A UNESCO heritage status shall bring about a boost to domesticand international tourism and related benefits to the city’seconomy and build public awareness about the values ofChandigarh’s unique modern heritage.

It will not only ensure protection of significant heritagebuildings and areas from neglect, willful destruction, defacement,inappropriate alterations but will also provide for preparation of acomprehensive urban development plan which respectsinternational heritage conservation criteria, is environmentallysustainable and also handles the future developmental needs ofthe city. The move was intended to train our officials fortechnologically appropriate repair and conservation of heritagebuildings.

F

G

CHANDIGARH SHOULD MAKE CONCERTEDEFFORTS FOR WORLD HERITAGE STATUS INCONSULTATION WITH THE MINISTRY OF HOME

H

AFFAIRS AND THE ARCHEOLOGICAL SURVEY OFINDIA.”

76. It will also be relevant refer to Clause 20.3 of the CMP-2031,which reads thus:

“20.3AN EFFECTIVE ENVIRONMENTAL MANAGEMENTPLAN FOR CHANDIGARH AND FOR THE REGION

It is recommended that an Effective Environmental ManagementPlan be devised for the region including Chandigarh which includesenvironmental strategy, monitoring regulation, institutional capacitybuilding and economic incentives. The proposal needs a legalframework and a monitoring committee to examine the regionallevel proposals/ big developments by Constitution of an Inter Statehigh 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 CMP-2031 itself wouldreveal that the CMP-2031 emphasizes on maintaining monumentalarchitecture and principles of town planning concept of Sun, Space, andVerdure, as enunciated by Le Corbusier. It also emphasizes thatCorbusier’s Chandigarh, i.e., Phase-I of the city, which is the mostrepresentative of Le Corbusier’s thought, is truly worthy of its modernheritage value. In spite of observing this, it states that eventually threestoreys with one dwelling unit per floor would be constructed on theseplots.

IX. CONSIDERATION OF CITED CASES:-

78. The provisions of Rule 14 of the 1960 Rules as well as Rule16 of the 2007 Rules fell for consideration in some matters before thisCourt as well as before the High Court.

79. The learned Single Judge of the High Court in the case ofChander Parkash Malhotra (supra) considered a dispute with regardto House No. 50, Sector 10-A, Chandigarh, which, on the death of theoriginal owner, was inherited by his sons and daughters. Some of thelegal heirs, i.e., brothers and sisters of Chander Parkash filed a suit forpartition of the property in which a preliminary decree came to be passedby the trial court on 30[th] September 1983. In appeal, the learned DistrictJudge modified some of the findings recorded by the trial court.

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AThereafter, the proceedings for passing of the final decree were takenup by the trial court. A Local Commissioner was appointed to suggestthe mode of partition, who submitted his report on 7[th] February 1989.The petitioner therein, Chander Prakash, raised his objections to the saidreport. The said objections were rejected by the trial court. The reportof the Local Commissioner was to the effect that the property in disputeBcannot be partitioned by metes and bounds. The order of the trial courtcame to be challenged before the High Court by way of revision. In therevision, the validity of Rule 14 of the 1960 Rules was also challenged.The learned Single Judge, vide its judgment dated 22[nd] February 1991,held Rule 14 of the 1960 Rules being ultra vires to the Constitution ofCIndia and also beyond the powers of the rule-making authority.

80. The said judgment of the learned Single Judge came to bechallenged by the Chandigarh Administration before this Court in thecase of Chandigarh Administration (supra). It will be relevant to referto Ground ‘G’ of the said appeal, which reads thus:D“G. That the Punjab Capital (Development and Regulation) Rulesare framed under Section 22 of the Punjab (Development andRegulation) Act, 1952. The provisions of Section 22 areconstitutional and do not suffer from any excessive delegation oflegislative power. It specifically provides that the rules shall beEmade for carrying out the purposes of the Act and further laysdown the subject matter which the rules have to provide. Theaims and objects with which the Act is enacted is to vest in theState Government the legal authority to regulate the sale of buildingsites and to frame building rules on the pattern of MunicipalBye-laws and for the planned development of the town. The entireFAct was purposefully directed to provide a reasonable socialcontrol of the urbanization visualized by the creation of analtogether new capital city for the State from scratch. Thepre-eminent ideas underlying the same were:-

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

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

(iii) Further to ensure that it conformed to an ideal concept of aplanned city as against the haphazard urbanization of themushroom growth of slums which in the ultimate analysis H

can even strangulate an existing town to extinction. It wasto effectuate these purposes that the rules have provided aban on fragmentation of sites and hence is a reasonablerestriction on the right of property. Keeping in view theobject and the preamble of the Act and the Rules framedthereunder, the same have to be viewed din a broaderprospective. The fundamental right under Articles 14 and19 of the Constitution are not absolute rights. TheConstitution itself has imposed reasonable restrictions onits exercise in the interest of general public. Consequently,the restriction imposed by Rule 14 in furtherance of theobject of the Act has to be judged as a reasonablerestriction.”

81. This Court, vide order dated 24[th] November 1992 passed inthe case of Chandigarh Administration (supra), observed thus:

“Leave granted.

In the present case, the respondents did not want thepartitioning of the plot by metes and bounds. All that they wantedwas the partitioning of the building and additions and alterationstherein to make separate living units in the same building. Eventhis partition as well as addition was to be done by them with theapproval of the Chandigarh Administration according to its buildingbye-laws. Since no fragmentation of any site including the buildingwas involved, there was no question of the violation of rule 14 ofthe Chandigarh Administration (Sale of Sites and Buildings) Rules,1960.

In the circumstances, it was not necessary to declare rule14 invalid as the High Court has done. To that extent, we setaside the order of the High Court.

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

82. This Court specifically set aside that part of the judgment ofthe High Court which had held Rule 14 of the 1960 Rules to be A

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Aunconstitutional. It could also be seen that, in the said case, the disputewas amongst the legal heirs of the original allottee.

83. It appears that, frustrated by the litigation, the brothers andsisters of Chander Parkash sold the property to R.B. Chahal and Mrs.Sukhraj Chahal. The final decree proceedings reached up to the HighBCourt by way of second appeal in the case of Sh. Chander ParkashMalhotra v. Sh. R.B.S. Chahal[13]. An application was made by R.B.Chahal and Mrs. Sukhraj Chahal for their impleadment since they hadpurchased shares of co-owners. The learned Single Judge, whiledisposing of second appeal vide its judgment dated 1[st] December 1993,observed thus:C

“6. As already noticed above, property cannot be partitionedaccording to bye-laws. The only alternative left is that the partiesbe permitted to bid among themselves and whosoever gives thehighest bid, be allowed to purchase the property. In case this modeis not acceptable, the trial court should determine the market valueDand given option to the appellant to purchase the share of theadded respondents. In case he fails to do so within the time thatthe trial court may allow for the purpose, the added respondentsbe allowed to pay the price of the share of ChanderPrakash-appellant.”

E

84. In the case of Tilak Raj Bakshi (supra), the property situatedin Chandigarh was owned by one Kripa Ram Bakshi. He had executeda registered will on 4[th] September 1974 in favour of the plaintiff, the firstdefendant and another son who was the 3[rd] defendant in the suit. Thedisputed house was transferred in favour of the aforesaid three personsFby the Estate Officer. The plaintiff had filed a suit claiming that in viewof an agreement between the three brothers namely himself, the firstdefendant and the younger brother, the third defendant, without theconcurrence of the plaintiff, the first defendant could not have sold thesuit scheduled property to the second defendant. The second defendant,who was not a part of the family, contended that the plaintiff did notGhave any preferential right and that he was a bona fide purchaser. Thetrial court found that the plaintiff was entitled to specific relief anddeclared the sale unit as null and void. The second defendant appealedagainst the said judgment of the trial court. The appeal of the seconddefendant was dismissed by the Appellate Court. The Appellate Court H13 1993 SCC OnLine P&H 1179

also allowed the cross-appeal filed by the plaintiff and directed the seconddefendant to handover possession to the plaintiff. However, the HighCourt allowed the second appeal, and the civil suit filed by the plaintiffwas dismissed. The matter thereafter reached this Court.

85. This Court considered the arguments advanced on behalf ofthe plaintiff that the same would result in contravention of the 1960Rules made under the 1952 Act. This Court, further considering certainprovisions of the 1952 Act, observed thus:

“59. From a perusal of the aforesaid provisions, it becomes clearthat the word “site” means any land which is transferred underSection 3 of the 1952 Act. When it comes to the terms of Section3, it contemplates power with the Central Government to transferby auction, allotment or otherwise any land or building belongingto the Government in Chandigarh on such terms and conditions asmay subject to any Rules that can be made under the Act, theGovernment thinks fit to impose. Thus, though it is open to theCentral Government to transfer either land or building belongingto the Government in Chandigarh under Section 3 of the 1952Act, the word “site” is confined to only the land which is transferredby the Central Government under Section 3. In fact, the word“building”, as defined in the Act, points to any construction or partof construction which is transferred under Section 3. It includesouthouse, stable, cattle shed and garage and also includes anybuilding 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 ismaintained between “site” and “building”. The Chandigarh (Saleof Sites and Buildings) Rules, 1960 came to be made. Section 22of the 1952 Act confers power upon the Central Government tomake the rules for various purposes, which are mentioned insub-section (2). It includes Sections 2(a), 2(d), 2(e) and 2(h) ofthe 1952 Act, which read as follows:

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

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

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A

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

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

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

“61. It is on the strength of the provisions contained in Rule 14 ofthe 1960 Rules and Rule 16 of the 2007 Rules that the appellantwould argue that the assignment of the share of the first defendantoccasioned a breach of the law. The second defendant, on theother hand, would point out that there was no issue offragmentation ever raised before the courts and the same wasnot decided in the courts.

62. It is contended by the second defendant that the sale deed infavour of Respondent 1 specifically says that the sale is in respectof one-third share in the residential House No. 13 of Sector 19-A,Chandigarh. After the sale deed, it is contended, one-third shareof the party was duly transferred and mutated in the name ofRespondent 1-second defendant by the Chandigarh Administration.The High Court, in fact, tides over this objection by the appellantby pointing out that once the second defendant steps into the shoesof the first defendant, he became a co-owner and his remedy is tosue 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 Sections2, 3 and 4 of the Partition Act, 1893.

63. While it may not be true that the issue of fragmentation wasnot raised in the courts, we would think that the appellant is notable to persuade us to hold that the assignment in favour of thesecond defendant is vulnerable on the basis that it involvesfragmentation. We have noticed the deposition of the plaintiff aboutpartition of the house into three portions. We have noted the factthat one-third share has been duly transferred and mutated in thename of the first respondent-second defendant by the ChandigarhAdministration.”

64. The second defendant has produced the communication dated19-12-1997 which indicates the transfer of rights of site in Sector 19-A held by Vishnu Dutt Mehta (first defendant) is noted in favourof the second defendant subject to certain conditions. This isobviously before the 2007 Rules came into force.

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

87. It could thus clearly be seen that, in the said case also, theproperty was bequeathed to plaintiff, the first defendant and anotherbrother who was the third defendant. The second defendant hadpurchased the property from the first defendant and as such, he becamea co-owner. The Court found that the assignment in favour of the seconddefendant was not vulnerable on the basis that it involved fragmentation.However, it also noted the deposition of the plaintiff about partition ofthe house into three portions. It also noted that the 1/3[rd] share had beenduly transferred and mutated in the name of the first respondent/seconddefendant by the Chandigarh Administration. It also noted that thetransfer of rights of site in Sector 19A held by the first defendant wasduly noted in favour of the second defendant subject to certain conditionson 19[th] December 1997. It noted that this was obviously before the 2007Rules came into force.

88. In another second appeal before the High Court in the case ofArvind Kapoor v. Kumud Kapoor and Another[14], again there was adispute between three siblings – a brother and two sisters. The disputewas with regard to House No. 2174, Sector 44-C, Chandigarh. Thesisters had relied on the family settlement dated 13[th] June 2000. ArvindKumar filed a suit seeking a declaration that the family settlement dated13[th] June 2000 was obtained by fraud and as such, not binding on him.One of the sisters namely Sangeeta Chopra sought a declaration thatshe was the owner of the first floor of the said house and that she begiven possession of the said property along with mesne profits/damages,as the brother Arvind Kapoor had illegally occupied the same. The othersister also supported the claim of Sangeeta Chopra. With regard to scopeof Rule 14 of the 1960 Rules, the learned Single Judge vide its judgmentdated 28[th] May 2019, observed thus:

“29. …. Yet, even if it were to be presumed that a purely legalquestion can be raised even at this stage, with this Court itself todecide on it as a substantial question of law, I would hold that as amatter of fact legal partition of the suit property has not been 14 Regular Second Appeal No. 1562 of 2012 dated 28.05.2019

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sought by respondent Sangeeta Chopra once she withdrew herclaim to ownership of the first floor thereof because of the statutorybar on such partition. Seeking possession of a particular floor ofthe property, in terms of the family settlement reached voluntarilybetween the parties, would not legally amount to partial partition,especially in the face of the fact that such partition in any case isstatutorily barred by the aforementioned rule, i.e., Rule 14 of theChandigarh (Sales of Sites and Buildings) Rules, 1960.

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It is to be specifically noticed that the applicability of the saidrule or the enactment under which the rules have been promulgated,is not denied by either party.

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

89. It thus appears that Sangeeta Chopra withdrew her claim toownership of the first floor of the property because of the statutory barDon such partition and restricted her claim for seeking possession of aparticular floor of the property in terms of the family settlement. TheHigh Court therefore held that the same would not legally amount topartial partition. It held that there is no statutory bar on possession/occupation on individual floors, as long as joint ownership is not partitioned.

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90. It is thus clear that all the aforesaid cases arose out of thedispute between the legal heirs of the original allottee, who becameco-owner of the property on the demise of original allottee. Wheneverany share of co-owner was sold to an outsider, it was held that such apurchaser stepped into the shoes of one of the co-owners and as aFco-owner, 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 defendantwere already transferred in favour of the second defendant prior to the2007 Rules coming into force.

GX. CONSIDERATION OF ISSUES:

92. Permitting co-owners of a building and site to occupy aparticular 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 threeHdifferent persons.

93. It is relevant to note that the 2001 Rules had introduced theconcept of apartments in the city of Chandigarh. The said Rules permittedsub-division of a building duly recognized by the Estate Officer. Eachsub-division of a building was recognized as a distinct, identifiableproperty to which the owner/lessee had title along with the proportionateright in the declared common areas and common facilities. The 2001Rules also permitted any residential building situated on a residential plotto be sub-divided into separate dwelling units, with not more than onedwelling unit on each floor.

94. Since the citizens of Chandigarh opposed apartmentalization,the 2001 Rules came to be repealed on 1[st] October 2007. Immediatelythereafter on 7[th] November 2007, the 2007 Rules came to be notified.Rule 16 of the 2007 Rules specifically prohibited fragmentation of a siteor building. Although fragmentation of any site could be allowed, if suchfragmentation was permitted under any scheme notified by theAdministration; admittedly, no such scheme is notified. As such, the effectis that though a building was permitted to be converted into apartmentsbetween the year 2001 and 2007, the same is not permitted after theyear 2007.

95. When the draft CMP-2031 was published, it was proposed tore-introduce the 2001 Rules, through which sub-division of residentialplots of 1000 sq. yards and above into two dwelling units on each floorwas to be permitted. The residential buildings on plots of less than 1000sq. yards were to be permitted with floor-wise sub-division into separatedwelling units with not more than one dwelling unit on each floor of thebuilding. The said Board was constituted to consider the objections/suggestions to the draft CMP- 2031. The said Board considered variousaspects such as recommendations of the Heritage Committee, whichwere accepted by the Government of India. It also consideredrecommendations of the Heritage Committee that the northern sectorsof Chandigarh (Corbusian Chandigarh) should be preserved in theirpresent form as far as possible, that no further enhancement should begiven in FAR. The said Board considered that the concept ofredensification in general would go against the heritage of the city.

96. The said Board also considered that individual developmentsof apartments in plots will result in increase in density in the areas of thecity that are most profitable to the developers, rather than where thesehousing units are actually required. It considered that introduction of the A

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A2001 Rules will most essentially create apartments in the higher costbracket of saleable units, and is unlikely to create any low income or midincome housing. It also considered that the demand in the city was forlower income and middle- income housing rather than housing for therich and affluent. It also considered that if the re-introduction of the2001 Rules is permitted, it will lead to proliferation of slums required toBservice the higher density of highest income group people.

97. It is to be noted that one of the salient features of LeCorbusier’s design was that the population density in the northern sectorswas to be low, which increases towards the southern sectors. Chandigarhcity has been planned as a low-rise city and has been so developed thatCeven after sixty years of its inception, it retains its original concept to alarge extent.

98. One of the guiding principles that weighed with the said Boardwas that Chandigarh had Heritage Value, and it was important to preserveand maintain the integrity of the original concepts and planning postulatesDof Sun, Space and Verdure. Another principle that weighed with the saidBoard was that any redevelopment in northern sectors (Phase-I) shouldonly be done keeping the recommendations of the Heritage Committeein mind. Another guiding factor was that the same practices as followedwhile developing the New Delhi Municipal area (Lutyen’s Delhi) befollowed in respect of the city of Chandigarh. The architecture of theEcity was to be preserved and retained in sync with Le Corbusier’s vision.The low-rise character of the city needs to be maintained. Therecommendations of the said Board had been accepted while notifyingthe CMP-2031.

99. It is important to note that the CMP-2031 itself states thatFPhase-I Sectors have been recommended for Heritage status, and thatthe re-utilization of the identified housing/institutional pockets in the firstphase has to be undertaken with the prior approval of the HeritageCommittee. Having observed this at one place, it is difficult to apprehendas to how, though the CMP-2031 observed that by the year 2001 itself,the planned density of 16 per acre in Phase-I has been exceeded, itGestimated the holding capacity to be 34 per acre. It also records that asper 2001 Census, the density in Phase-I was 26 per acre.

100. The CMP-2031 thereafter observes that under the regulations,all private plots can build up to three floors with each floor having thepotential of having an independent unit. It further observes that thereH

are approximately 23000 private plots of all categories within the sectoralgrid of the Chandigarh Master Plan. It assumes that each plot willeventually be built upto 3 storeys with one unit per floor, taking the numberof dwelling units to 69000 approximately.

101. It also recognized that the “Corbusian Chandigarh” title givento Phase-I of the city, which is the most representative of Le Corbusier’sthought and philosophy, is truly worthy of recognition for its ModernHeritage Value. It further records that Sectors 1 to 30 are planned anddetailed out by the original team in fulfillment of the CIAM principles ofLiving, Working, Care of Body and Spirit and Circulation.

102. The CMP-2031 also recommends that concerted effortsshould be made for getting the world heritage status for Chandigarh inconsultation with the Ministry of Home Affairs and the ArcheologicalSurvey of India. It also records that it has been perceived thatChandigarh’s inscription on the World heritage list would bring manybenefits as the city would join a select list of other modern movementcities/urban areas currently inscribed on the UNESCO’s heritage list.

103. It will be pertinent to note that in the appeal filed before thisCourt in the case of Chandigarh Administration (supra), which wasfiled by the Chandigarh Administration challenging the judgment of theHigh Court holding Rule 14 of the 1960 Rules to be unconstitutional, itwas specifically submitted that Rule 14 of the 1960 Rules was enactedin order to restrict the further growth of Chandigarh city. It had beensubmitted that the 1960 Rules provide a ban on fragmentation of sitesand as such, was a reasonable restriction on the right of property. It isfurther to be noted that even in the reply filed on behalf of the ChandigarhAdministration in the present proceedings before the High Court, it hadbeen averred thus:

“10. That the contents of paragraph 10 as stated are wrong anddenied. The Chandigarh Administration does not permit aresidential house to be converted into an apartment on account ofthe fact that “The Chandigarh Apartment Rules 2001” now standrepealed. However, the architectural controls and building bye-lawsare of the highest standards, even otherwise the Estate Officemaintains a strict vigil on the construction activities/ complianceof Rules and Building Bye-Laws in UT Chandigarh. Therefore,contrary to the claims of the petitioner, the character of Chandigarhis intact.

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A11. That the contents of paragraph 11 as stated are wrong anddenied. However, there is no bar on alienation/transfer of a sharein a property by a true owner, as it is permissible as per theprovisions of the enactments and the recognized principles of civillaw referred above. Therefore, an owner of a freehold residentialhouse is permitted to sell his share or a part of the shares in theBsaid house. It is further submitted that no floor wise sale of propertyis permissible under the Capital of Punjab (Development &Regulations)” Act, 1952. The contents of the preliminary objectionsas well as the preliminary submissions may also be read as a partand parcel of this paragraph.”C

104. It can thus clearly be seen that Chandigarh Administrationhas reiterated its stand that it does not permit residential house to beconverted into an apartment on account of the fact that the 2001 Rulesnow stand repealed. It however stated that there is no bar on alienation/transfer of a share in a property by a true owner, as it is permissible asDper the provisions of the enactments and the recognized principles ofcivil law. It is stated that an owner of a freehold residential house ispermitted to sell his share or a part of the shares in the said house.However, it is reiterated that no floor-wise sale of property is permissibleunder the 1952 Act.

E105. The Division Bench of the High Court, vide an interim orderdated 27[th] July 2021, reproduced the stand of Chandigarh Administration.It also noticed that in the subsequent affidavit dated 20[th] July 2021 of theAssistant Estate Officer, Chandigarh, it was specifically deposed thatno sale of defined portion/plot of building is permissible, nor any suchsale has been recognized by the Chandigarh Administration except thoseFregistered during the year 2001 to 2007 when the 2001 Rules were invogue.

106. Since the Division Bench was seized of the matter, it thoughtit was appropriate to scan through the advertisements that were publishedin news dailies in the recent past, having circulation in the city, so as toGfind out whether any floor-wise sale of dwelling units is advertised. Itnoticed that in the Sunday Tribune dated 25[th] July 2021 itself, as many as24 advertisements were published inviting the purchasers/investors topurchase independent floors. In this order itself, the High Court hasreproduced such advertisements. After reproducing such advertisements,the Division Bench observed thus:H

“The afore-reproduced advertisement(s) lend credence tothe assertion raised on behalf of the petitioners that under thegarb of sale of certain percentage share of a residential unitindependent floors are being sold.

We find that the written statement filed on behalf of theofficial respondents/ Chandigarh Administration as also thesubsequent affidavit of the Assistant Estate Officer is totally silenton such aspect. In our view, the Chandigarh Administration oughtto have been alive to such situation and particularly when therewere specific averments made in the present petition which wasfiled way back in the year 2016. Being in a state of denial onpaper would not suffice. In the fitness of things, the Administrationshould have carried out some kind of physical verification toascertain as to whether such modus operandi had been resortedto after repeal of the Apartment Rules, 2001. Mr. Pankaj Jain,learned Senior Standing counsel on a specific query having beenput, concedes that no such verification has been carried out.

We are constrained to observe that UT Administration haschosen to skirt a vital issue that has been raised in the instantpetition. In view of the above we direct UT Administration toforthwith carry out an exercise whereby in the first instance theproperties/buildings would be identified from the office of the EstateOfficer where the record of the rights is maintained wherein saleof 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 physicalinspection of such identified buildings/dwelling units to find out asto whether the sale of share(s) has actually translated into thebuyer occupying an independent floor in the otherwise compositedwelling unit or to find out as to whether independent floors are inthe process of being constructed commensurate to the share(s)that has been purchased in such dwelling unit. It would be openfor the official respondents to seek the cooperation/ assistance ofthe concerned police authorities/law enforcement agencies tofacilitate the carrying out of the physical inspection of the premisesin question. We further direct that this entire exercise be carriedout under the supervision of the Chief Architect, UT Chandigarh.

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Awe are of the view that it ought to be a sample exercise. Thesame be confined from the date of filing of the instant petition till31.12.2019. Still further the exercise to confine only with regardto residential buildings.”

107. It is thus clear that the Division Bench found that the writtenBstatement filed on behalf of the Chandigarh Administration as also thesubsequent affidavit of the Assistant Estate Officer, Chandigarh is totallysilent on the aspect of advertisements of sale of independent floors. Itobserved that, Chandigarh Administration ought to have been alive tosuch situation, and particularly when there were specific averments madeto that effect in the writ petition which was filed way back in the yearC2016. The Division Bench observed that the Chandigarh Administrationshould have carried out some kind of physical verification to ascertainas to whether the aforementioned modus operandi had been resortedto after the repeal of the 2001 Rules. The High Court recorded thecontention of the Senior Standing Counsel on behalf of the ChandigarhDAdministration that no such verification has been carried out. TheDivision Bench thereafter issued a direction to the ChandigarhAdministration to forthwith carry out an exercise in two steps. In thefirst step, the properties/buildings were to be identified from the officeof the Estate Officer where the record of the rights is maintained whereinshare(s) be it to the extent of 50%, 30% or 20% has been sold/transferredEto a person outside the family of the original owner/shareholder. Thesecond step was to carry out physical inspection of such identifiedbuildings/dwelling units to find out as to whether the sale of share(s) hasactually translated into the buyer occupying an independent floor in theotherwise composite dwelling unit or to find out as to whether independentFfloors are in the process of being constructed, commensurate to theshare(s) that has been purchased in such dwelling unit.

108. It is thus clear that when the interim order was passed on27[th] July 2021, the Division Bench was conscious of the fact that evenaccording to the Chandigarh Administration, it was not permissible toGconstruct apartments on the sites allotted and sell it to different persons.It is informed that, in pursuance to the directions of the High Court dated27[th] July 2021, a survey was conducted and it was found that 891 siteswere converted into three apartments each.

109. From the material placed on record, it appears that the modusoperandi that is devised by the developers is that the allottee of theH

house would convey 50% of the share to the first purchaser, 30% to thesecond purchaser and 20% to the third purchaser. Thereafter, all thethree purchasers would enter into either a settlement deed or aMemorandum of Understanding (MoU) under which the party having50% share of the house is entitled to the entire ground floor with basementincluding the back courtyard but excluding the front courtyard and thestaircase. The second purchaser having 30% share in the house wouldbe entitled to the entire first floor excluding the staircase. The thirdpurchaser having 20% share of the house would be entitled to the entiresecond floor including the roof of the second floor but excluding thestaircase.

110. It will be relevant to refer to the recitals in one of suchsettlement deeds executed on 2[nd] May 2013, which read thus:

“Whereas as per the present rules of the Estate Office it couldnot been mentioned in the Sale Deed that the possession of whichfloor/portion/area has been given to the purchaser so this MOUhas been executed between the parties to avoid any futuremisunderstanding/litigation among all the co- owners of the saidhouse in respect of their respective possession in the said housein lieu of their respective shares in the said house so this MOUhas been executed between the parties and all the parties haveagreed with each other on the following terms and conditions.”

111. It is thus clear that, the parties who entered into such anMoU, were conscious of the fact that as per the Rules of the EstateOffice, it could not be mentioned in the sale deed that the possession ofparticular floor is given to the purchaser. It asserts that the MoU hasbeen executed between the parties to avoid any future misunderstanding/litigation amongst all the co-owners of the said house in respect of theirrespective possession in the said house in lieu of their respective sharesin the said house.

112. It will also be relevant to refer to Clause 12 of the saidSettlement Deed dated 2[nd] May 2013, which reads thus:

“12. That from now on all the parties shall hereafter peacefullyhold, use and enjoy their respective portions as their own propertywithout any hindrance, interruption, claim or demand whatsoeverfrom each other. But as the parties are owners of different portionsin one common house, they will be dependent upon each other in A

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658SUPREME COURT REPORTS

Amany ways in their day to day lives. So they should try to co-existamicably with each other as brothers and sisters and familymembers, always keeping in mind the necessities, comforts, rightsand feelings of each other and try to sort out any differences,discomforts and dissatisfactions in a peaceful and dignifiedmanner.”B

113. It is thus clear that the MoU clearly states that all the parties,after entering into such a document, would peacefully hold, use andenjoy their respective portions as their own property without anyhindrance, interruption, claim or demand whatsoever from each other.No doubt, it states that since the parties are owners of different portionsCand would be dependent upon each other in many ways, they should tryto co-exist amicably with each other as brothers and sisters and familymembers.

114. According to the High Court, the said does not amount tofragmentation, which is prohibited by Rule 16 of the 2007 Rules. TheDHigh Court has held that fragmentation will take place only where thereis a division of the plot or division of the building with an element ofexclusive 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 DictionaryEof 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 orincomplete: Fragments of his latest novel were penciled in oddplaces. 3. an odd piece, bit, or scrap. – v.i. 4. to disintegrate;Fcollapse or break into fragments: The chair fragmented under hisweight. – v.t. 5. to break (something) into pieces or fragments;cause to disintegrate: The vase was fragmented in shipment.Outside influences soon fragmented the culture. 6. to divide intofragments; disunify. [ME < L fragment (um) a broken piece,Gremnant, equiv. to frag – (s. of frangere to break) + - mentum –MENT] Frag.men.ta.tion (frag’men’ta’shen), n. – 1. act orprocess of fragmenting; state of being fragmented. 2. thedisintegration, collapse, or breakdown of norms of thought, behavior,or social relationship.3. the pieces of an exploded fragmentationbomb or grenade. [FRAGMENT + - ATION]”

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116. A perusal of the aforesaid clauses from the settlement deeds,which have been reproduced hereinabove, it is clear that theunderstanding between the parties is that they are independent ownersof different floors. It would also reveal that as per their understandingalso, the present Rules of the Estate Office, would not permit to mentionin the sale deed that the possession of which floor/portion/area has beengiven the purchaser. In any case, what is to be found is the real intentionbehind the transaction. When the transaction clearly shows that it isbeing entered into for the purpose of constructing three differentapartments on each floor and also mentions that the same is not permissibleunder the existing rules, the intention of the parties is to construct threedifferent units which are disintegrated. This is nothing else butfragmentation. In our view, it is an attempt to by-pass the statutoryprohibition.

117. It will also be relevant to refer to an undertaking which theowner is required to furnish in an application for obtaining the occupationcertificate:

“UNDERTAKING OF OWNER

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6. I/We do hereby certify that buildings will be used for residentialpurposes as per allotment letter and its use will not be changed orconverted into Apartments without obtaining written permissionfrom the competent authority.”

118. The application which is to be made in the said format is stillin vogue. In the teeth of such an undertaking and the specific stand ofChandigarh Administration that it does not permit construction ofapartments, it is difficult to appreciate as to how building plans havebeen sanctioned which ex-facie show that they are nothing else butapartments.

119. It is thus clear that the modus operandi of the developers is,in effect, resulting into apartmentalization of the buildings. What is notpermissible in law after the repeal of 2001 Rules on 1[st] October 2007,and enactment of Rule 16 of the 2007 Rules, is indirectly being permittedunder the guise of sale of shares and subsequent MoUs. It is also to benoted that though an attempt was made in the draft CMP- 2031 toreintroduce the provision for apartments, after considering the objections,it was decided to delete the same from the final CMP-2031. As already A

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Astated hereinabove, on account of such transactions, number of siteshave been purchased through the aforesaid modus operandi; buildingswere demolished and three apartments were constructed thereon.

120. The High Court in the impugned judgment though holds thatit is not permissible to construct apartments in view of repeal of the 2001BRules, goes on to hold that the said would not amount toapartmentalization, inasmuch as there is no sub-division of a buildingduly recognized by the Estate Officer along with the proportionate sharein common areas and common facilities. It holds that by virtue of sale ofshare(s) by a co-owner and thereafter, the purchaser/vendee occupyinga specific portion of the building on the basis of an internal arrangement/Cunderstanding, “sub-division of building” as contemplated under the 2001Rules does not take place. In our considered view, the said reasoning isnot sustainable in the teeth of Rule 16 of the 2007 Rules.

121. If the reasoning which is adopted by the High Court is to beaccepted, then it will lead to a situation wherein, as aforementioned,Dwhat is not directly permissible in law, is being indirectly permitted.Therefore, in our view, the reasoning of the High Court would not betenable in law.

122. As stated hereinabove, the CMP-2031 itself states that sincePhase-I Sectors have been recommended for heritage status, theEre-utilization of the identified housing/institutional pockets in the firstPhase has to be undertaken only with the prior approval of the HeritageCommittee. Even in the report of the said Board, it has been specificallystated that the Heritage Committee has recommended that northernsectors of Chandigarh (Corbusian Chandigarh) should be preserved inFtheir present form as far as possible. It is also stated that generalredensification is not recommended. It has considered that the HeritageCommittee has taken a serious note of the relaxations in FAR and buildingcontrols already given earlier and has recommended that no furtherrelaxation be given and has also recommended that the relaxations alreadygranted should be revoked.G

123. This Court in the case of Bangalore Medical Trust v. B.S.Muddappa and Others[15], while considering the provisions of BangaloreDevelopment Authority Act, 1976, has considered an issue with regardto deviation from duly sanctioned scheme thereby sacrificing the publicinterest in the preservation and protection of environment. It will beH15 (1991) 4 SCC 54

apposite to reproduce certain observations made in the aforesaidjudgment, which read thus:

“18. ….…Any unauthorised deviation from the duly sanctionedscheme by sacrificing the public interest in the preservation andprotection of the environment by means of open space for parksand play grounds and ‘ventilation’ will be contrary to the legislativeintent, and an abuse of the statutory power vested in theauthorities…”

24. Protection of the environment, open spaces for recreationand fresh air, play grounds for children, promenade for theresidents, and other conveniences or amenities are matters ofgreat public concern and of vital interest to be taken care of in adevelopment scheme. It is that public interest which is sought tobe promoted by the Act by establishing the BDA. The publicinterest in the reservation and preservation of open spaces forparks and play grounds cannot be sacrificed by leasing or sellingsuch sites to private persons for conversion to some other user.Any such act would be contrary to the legislative intent andinconsistent with the statutory requirements. Furthermore, it wouldbe in direct conflict with the constitutional mandate to ensure thatany State action is inspired by the basic values of individual freedomand dignity and addressed to the attainment of a quality of lifewhich makes the guaranteed rights a reality for all the citizens.

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

124. In the case of Shanti Sports Club and Another v. Union ofIndia and Others[16], this Court enunciated the difference betweendeveloped and developing countries vis-à- vis planned development andobserved that the object of planned development had been achieved bydeveloped countries by rigorous enforcement of master plans preparedafter careful study of complex issues, scientific research andrationalisation of laws and concluded that developed countries had laidgreat emphasis on the planned development of cities.

125. It was further observed that the people of developed countrieshad greatly contributed to the concept of planned development of cities

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Aby strictly adhering to the planning laws, the Master Plan etc. and thatthey respect the laws enacted by the legislature for regulating planneddevelopment of the cities and seldom is there a complaint of violation ofMaster Plan etc. in the construction of buildings, residential, institutionalor commercial. On the other hand, the scenario in developing countrieslike ours was substantially different. Though, the competent legislaturesBhave, from time to time, enacted laws for ensuring planned developmentof the cities and urban areas, enforcement thereof has been extremelypoor and the people have violated the master plans, zoning plans andbuilding regulations and bye-laws with impunity. This Court observed asunder:

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“74. ………….In most of the cases of illegal or unauthorizedconstructions, the officers of the municipal and otherregulatory bodies turn a blind eye either due to the influence of higher functionaries of the State or otherextraneous reasons. Those who construct buildings in violationof the relevant statutory provisions, master plan etc. and thosewho directly or indirectly abet such violations are totallyunmindful of the grave consequences of their actions and/oromissions on the present as well as future generations of thecountry which will be forced to live in unplanned cities andurban areas. The people belonging to this class do not realizethat the constructions made in violation of the relevant laws,master plan or zonal development plan or sanctioned buildingplan or the building is used for a purpose other than the onespecified in the relevant statute or the master plan etc., suchconstructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart fromcreating chaos on the roads………

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75. Unfortunately, despite repeated judgments by this Court andHigh Courts, the builders and other affluent people engaged in theconstruction activities, who have, over the years shown scantrespect for regulatory mechanism envisaged in the municipal andother similar laws, as also the master plans, zonal developmentplans, sanctioned plans etc., have received encouragement andsupport from the State apparatus. As and when the courts havepassed orders or the officers of local and other bodies have takenaction for ensuring rigorous compliance of laws relating to planned G

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development of the cities and urban areas and issued directionsfor demolition of the illegal/unauthorized constructions, those inpower have come forward to protect the wrong doers either byissuing administrative orders or enacting laws for regularizationof illegal and unauthorized constructions in the name of compassionand hardship. Such actions have done irreparable harm to theconcept of planned development of the cities and urban areas. Itis high time that the executive and political apparatus of theState take serious view of the menace of illegal andunauthorized constructions and stop their support to the lobbiesof affluent class of builders and others, else even the ruralareas of the country will soon witness similar chaoticconditions.”

[Emphasis supplied]

[Emphasis supplied]

126. A strong reliance has been placed on behalf of the respondentson the provisions of the 2017 Rules. It has been submitted that the 2017Rules clearly permit construction of three storeys. It is submitted that‘storey’ has been defined to mean any horizontal division of a building soconstructed as to be capable of use as a living apartment, although suchhorizontal division may not extend over the whole depth or width of thebuilding but shall not include mezzanine floor. It is therefore submittedthat when the 2017 Rules itself 1permit construction of three storeyshaving independent kitchens etc. and the 2017 Rules having not beenchallenged, it is not permissible for the appellants to argue that threepersons cannot be permitted to occupy three different dwelling units oneach storey.

127. We are unable to accept the said argument. It is a differentmatter that three co-sharers decide to construct a building for residentialhouse and construct three storeys for occupation by each of theco-sharers. However, allowing such modus operandi to continue, which,in effect, nullifies the effect of repeal of the 2001 Rules, enactment ofthe 2007 Rules, and recalling an attempt to reintroduce apartmentalizationin the draft CMP-2031, would be permitting to do something indirectlywhich is not permissible in law.

128. Another aspect that needs to be taken into consideration isthat the CMP-2031 as well as the report of the said Board emphasizesthat in order to maintain the “Corbusian Chandigarh” status of Phase-I

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Aof Chandigarh, no redensification is to be done without the permission ofthe Heritage Committee. Undisputedly, permitting three apartments tobe constructed in one dwelling unit would result in increasing the densityin population in the Le Corbusier zone. This, in our view, cannot be donewithout the same being approved by the Heritage Committee and theCentral Government.B

129. It further needs to be noted that one of the guiding principlesthat has been taken into consideration by the said Board is that the samepractices which were followed while developing the New Delhi Municipalarea (Lutyen’s Delhi) be followed in respect of the city of Chandigarh.Insofar as the practices that were followed while developing New DelhiCMunicipal area (Lutyen’s Delhi), a Bench consisting of three learnedJudges of this Court had an occasion to consider the same in the case ofNew Delhi Municipal Council and Others v. Tanvi Trading andCredit Private Limited and Others[17], wherein this Court observed thus:

“6. On 1-8-1990, the Master Plan, 2001 was approved wherein itDwas specifically mentioned that the bungalow character of LBZneeds to be preserved. The Master Plan even without specificallymentioning LBZ guidelines visualised similar treatment of LBZso as to maintain the low density area without in any manneradversely affecting the green cover in the area. On 27-7-1993Eobjections were invited to the Zonal Development Plan whereason 25-5-1994 the New Delhi Municipal Council Act, 1994 cameinto force.”

130. In the said case, this Court was considering an appealchallenging the judgment of the Division Bench of the High Court videFwhich it was held that the order rejecting building plans submitted by therespondents for the construction of a 15 storeyed building in the LutyensBungalow Zone (LBZ) was illegal. Vide the said judgment of the HighCourt, the New Delhi Municipal Council was directed to return the buildingplans submitted by the respondents with an endorsement “sanctioned”within the time specified in the order. This Court, however, vide judgmentGdated 28[th] August 2008, set aside the judgment of the High Court andallowed the appeal in the following terms:

“47. On the facts and in the circumstances of the case, this Courtis of the opinion that the respondents would be entitled to construct H17 (2008) 8 SCC 765

bungalow on their plot of land, in terms of guidelines dated 8-2-1988and that they would not be entitled to construct fifteen dwellingunits which is quite contrary to those guidelines. The record doesnot indicate that the building plans of the respondents are fullycompliant with the requirements of the Delhi Master Plan, 2001and the Delhi Bye-Laws, 1983 and, therefore, the impugnedjudgment deserves to be set aside.”

131. Though, it may not be strictly possible to adhere to thepractices that are followed in LBZ, when the report of the said Board aswell as the CMP-2031 emphasizes on the approval of the HeritageCommittee before permitting any redensification in the Le Corbusierzone, the Chandigarh Administration could not have made the provisionsin the CMP-2031 permitting redensification without the approval of theHeritage Committee.

132. A perusal of the CMP-2031 itself would reveal that the ExpertCommittee observes that Chandigarh’s inscription on UNESCO’s WorldHeritage list would bring many benefits as the city would join a select listof other modern cities/urban areas currently inscribed on it. In our view,in this background, providing something which would adversely affectthe heritage status of the Le Corbusier Zone, without the approval of theHeritage Committee, would not be permissible.

133. The material placed on record would clearly reveal thatPhase-I was designed for a low-rise plotted development with a greenbeltat the Centre running north east to south east. Wide roads planned in asystematic hierarchy provide structure to the city which has well plannedfacilities. Landscaped green avenues give it amenity value. In our view,permitting anything which would have an adverse effect on the heritagestatus of the city without the approval of the Heritage Committee itselfwould be contrary to the CMP-2031 and the report of the said Board.

134. Insofar as the contention raised on behalf of the respondentsthat the restriction on transfer of property would not be permissible inview of the provisions of the TP Act is concerned, it is to be noted that inthe case of Chander Parkash Malhotra (supra), the High Court hadheld Rule 14 of the 1960 Rules to be ultra vires to the Constitution ofIndia. However, in an appeal filed by the Chandigarh Administration,this Court set aside the said order of the High Court. Apart from that, itis to be noted that Rule 14 of the 1960 Rules and Rule 16 of the 2007

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ARules have been enacted under the 1952 Act. It is a settled law that incase of a conflict between a special provision and a general provision,the special provision prevails over the general provision and the generalprovision applies only to such cases which are not covered by the specialprovision. Reliance in this respect is to be made to the judgment of thisCourt in the case of J.K. Cotton Spinning & Weaving Mills Co., Ltd.Bv. The State of Uttar Pradesh and Others[18], which has been consistentlyfollowed by this Court.

135. We may also gainfully refer to the observations of a FullBench of the Punjab & Haryana High Court in the case of DheeraSingh v. U.T. Chandigarh Admn. and Others[19], wherein the Full BenchChas held that “The Parliament, in no uncertain terms, has expressedthrough a non obstante clause contained in Section 424-A of the PunjabMunicipal Corporation (Extension to Chandigarh) Act, 1994 that theprovisions of the 1952 Act shall operate and have an overriding effect.”We respectfully agree with the view taken by the Full Bench.D136. Another aspect that needs to be taken into consideration isthat, as observed in the interim order of the High Court dated 27[th] July2021, the Chandigarh Administration has not been alive to the situation.Taking into consideration the importance of the matter, we had directedthe Estate Officer to remain present during the proceedings of the hearing.EAccordingly, Shri Vinay Pratap Singh, Estate Officer, was personallypresent. The Estate Officer also agreed that though CMP-2031 isopposed to apartmentalization and redensification, under the 2017 Rulesthere was no restriction to construct three independent units byco-owners. One aspect that needs to be taken into consideration is thatthough under the 2017 Rules, one dwelling unit is being permitted to beFconverted into three dwelling units, there is no adequate provision forparking. The Estate Officer also agreed that there was a huge problemof parking in the city of Chandigarh. This aspect had also not been takeninto consideration while notifying the 2017 Rules. It is difficult to appreciateas to how on one hand, the Chandigarh Administration is taking a stand that apartmentalization is not permissible and on the other hand, turningGNelson’s eye when plans, which ex-facie amount to apartmentalization,are being submitted and sanctioned under its very nose.

137. It is further pertinent to note that in the CMP-2031 itself, theExpert Committee has recommended thus:18 [1961] 3 SCR 185H19 2012 SCC OnLine P&H 21473

“Master Plan Committees’ recommendation

Preparation and notification of Heritage Regulations shouldbe prioritized. The earlier approved Draft Notificationprepared at the time of preparation of the UNESCONomination Dossier and the Model Heritage Regulationsissued by the GOI can be used as a reference.

To prevent undue change or damage to the historic andcultural value of Le Corbusier’s urbanism, interim ordersmust be issued not to make any modifications in the heritage areasapproved by the Government of India, the circulation structure,the generic sector, architectural control and the plantations till suchtime as heritage regulations are finalized.”

138. It has been recommended that to prevent undue change ordamage to the historic and cultural value of Le Corbusier’s urbanism,interim orders must not be issued to make any modifications in the heritageareas approved by the Government of India, the circulation structure,the generic sector, architectural control and the plantations.

139. Judicial notice can be taken of the creation of the city ofBrasilia as the capital of Brazil. From the website of the “UNESCOWorld Heritage Convention”, it could be seen that the city was plannedby urban planner Lucio Costa and architect Oscar Niemeyer. It will beinteresting to note that while planning the said city, urban living as promotedby Le Corbusier and his treatise titled “How to Conceive Urbanism”served as an inspiration. It is worthwhile to note that in spite of variouschanges, 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 elementsrequired to demonstrate outstanding universal value. A city that isat once urbs and civitas, Brasilia has preserved its original guidingprinciples intact, as reflected in the protection of its urban scales,legally protected by local and federal organisms of government ofthe country.

The city finds itself today in the midst of a process of consolidation,in accordance with its dual function as city and capital, throughthe continuing implementation of new urban services andstructures. The World Heritage property is vulnerable to urbandevelopment pressure including increased traffic and publictransport requirements. The city’s various sectors, as laid out inthe initial plan, are now in the process of being supplemented and,indeed, concluded, in line with the original urban principles. These A

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changes in no way jeopardize the singular and outstanding valueof Lucio Costa’s Pilot Project (Plano Piloto), which remains whollypreserved, both physically and symbolically.

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

140. It will also be relevant to extract the following passage fromthe said website, which would show the steps taken for protection of theCurban framework of Brasilia:

“Protection of the Urban Framework of Brasilia is governed by aseries of legal instruments intended to ensure its preservation onthree operational levels: local, federal, and global. At the locallevel, a set normative instruments consisting of specific laws aimedat protecting the heritage site as well as highly complex body ofDtechnical and operational urban legislation based on the FederalDistrict’s Urban and Land Settlement Policy have been put inplace.”

141. The said website would also show that similar steps havebeen taken for protecting the White City of Tel-Aviv and the city of LeEHavre, rebuilt by Auguste Perret.

142. We find that similar steps need to be taken by the ChandigarhAdministration as well as the Government of India for protecting theheritage status of Le Corbusier’s Chandigarh.

143. In this respect, we may also refer to the Directive PrinciplesFcontained in Articles 49 and 51A(f) and (g) of the Constitution of India,which read thus:

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

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

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H(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 livingcreatures;”

144. A conjoint reading of the aforesaid provisions would revealthat a responsibility is cast upon the State as well as the citizens toprotect and conserve the heritage. Undisputedly, Phase-I of Chandigarh,i.e., Corbusian Chandigarh, even according to the respondent-authorities,possesses a heritage status. The CMP-2031 itself emphasizes thatChandigarh should be included in the UNESCO’s World Heritage Listdue to its outstanding universal value. As already discussed hereinabove,the fragmentation/apartmentalization of residential units in Phase-I ofChandigarh is destructive of the vision of Le Corbusier. It is also opposedto the concept of protecting and preserving the heritage status ofCorbusian Chandigarh. As such, it is necessary that therespondent-authorities must take every possible step for preserving theheritage status of Corbusian Chandigarh.

XI. ENVIRONMENTAL ISSUES:

145. One another important aspect that needs to be taken intoconsideration is the adverse impact on environment on account ofhaphazard urbanization. It will be relevant to refer to Clause 20.3 of theCMP-2031 which we have already reproduced hereinabove. It has beenrecommended that an Effective Environmental Management Plan bedevised for the region including Chandigarh, which includes environmentalstrategy, monitoring regulation, institutional capacity building and economicincentives. It is observed that the proposal needs a legal framework anda monitoring committee to examine the regional level proposals/bigdevelopments by the constitution of an Inter State high powered RegionalEnvironmental Management Board, as per the proposal of the Ministryof Environment and Forests, Government of India.

146. The United Nations Environment Programme (UNEP) notesin its publication titled “Integrating the Environment in Urban Planningand Management – Key Principles and Approaches for Cities inthe 21[st] Century” that more than half of the world’s population is nowliving in urban areas. It further noted that by the year 2050, more thanhalf of Africa and Asia’s population will live in towns and cities. Itrecognized that City Development Strategies (CDSs) have shown howto integrate environmental concerns in long-term city visioning exercises.It states that environmental mainstreaming can help to incorporaterelevant environmental concerns into the decisions of institutions, whileemerging ideas about the green urban economy show how density can A

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147. The said publication defines EIA to be an analytical processor procedure that systematically examines the possible environmentalconsequences of the implementation of a given activity (project). It isBaimed to ensure that the environmental implications of decisions relatedto a given activity are taken into account before the decisions are made.

148. Judicial notice is also taken of the cover story published inthe weekly, “India Today”, dated 24[th] October 2022, titled as “Bengaluru– How to Ruin India’s Best City” by Raj Chengappa with AjayCSukumaran. The said article depicts the sorry state of affairs as to howthe city of Bengaluru, once considered to be one of India’s best cities, a‘Garden city’ has been ruined on account of haphazard urbandevelopment. It takes note of as to how on account of one major spell ofrain 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 theDflood caused to the Outer Ring road tech corridor alone was estimatedto be over Rs.225 crore.

149. The article notes that, while on one hand, on account ofheavy rains, many of the houses were submerged in water, on the otherhand, the city faced a huge shortage of drinking water.

E150. The article further notes that rapid expansion of the city withno appropriate thought given towards transportation and ease of mobilityhas 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 thepolitician-businessman-builder nexus, which has thrived. It further notedFthat though posh colonies mushroomed in new areas, the infrastructurelagged, as roads remained narrow, the drainage poor, and no adequateprovision for garbage disposal too.

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151. The article notes that the primary canals known locally asrajakaluves were once natural rain-fed streams across which farmersGbuilt small bunds over time, to arrest the flow of water and create lakes.It further notes that these interlinked man-made lakes worked as astorm-water drain network. However, in order to meet the demand forspace for construction and roads, the administrators allowed the lakes tobe breached regularly. The lakes, which once numbered a thousand-odd,are now reduced to a paltry number. Worse, the rajakaluves thatHchannelized the storm water had buildings built over them.

152. The warning flagged by the city of Bengaluru needs to begiven due attention by the legislature, executive and the policy makers.It is high time that before permitting urban development, EIA of suchdevelopment needs to be done.

XII. CONCLUSION:

153. Taking overall view of the matter, we are of the consideredview that permitting redensification in Phase-I, which has heritage value,on account of being “Corbusian Chandigarh”, without the same beingapproved by the Heritage Committee, is contrary to the CMP-2031 itself.The CMP-2031 on one hand does not permit apartmentalization, however,on the other hand, it estimates the number of dwelling units to be triple ofthe plots available. Though on account of repeal of the 2001 Rules in theyear 2007 and on account of Rule 16 of the 2007 Rules, the High Courtitself holds that apartmentalization is not permissible; it goes on to holdthat though the developers/builders are in effect indulging into constructionof three apartments in a building, the same does not amount toapartmentalization. In our view, this would amount to permitting somethingindirectly which is not permitted directly. The authorities of the ChandigarhAdministration are blindly sanctioning building plans, when from thebuilding plans itself it is apparent that the same are in effect convertingone dwelling unit into three apartments. Such a haphazard growth mayadversely affect the heritage status of Phase-I of Chandigarh which issought to be inscribed as a UNESCO’s heritage city. It is further to benoted that though the Chandigarh Administration is permitting onedwelling unit to be converted into three apartments, its adverse effect ontraffic has not been addressed. With the increase in number of dwellingunits, a corresponding increase in the vehicles is bound to be there.However, without considering the said aspect, one dwelling unit ispermitted to be converted into three apartments.

154. We find that the High Court has failed to take intoconsideration all these aspects. No doubt that the High Court has issuedcertain directions so as to protect the interest of home buyers. It hasalso observed that “Chandigarh Administration chooses to stay smug,taking a stand on paper that floor-wise sale of residential building is notpermissible while residential floors are being advertised for sale rightunder its nose”. It therefore directed the Chandigarh Administration toissue a notice to be published at periodic intervals in the newspapers forthe purposes of sounding a word of caution and educating such homebuyers who have already purchased a share in a residential building/siteas also the prospective home buyers. The High Court also directed the A

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AChandigarh Administration to mention in the said notice that fragmentationof site/building is specifically prohibited under the 2007 Rules. It furtherdirected to mention in the said notice that the Chandigarh Administrationdoes not recognize ownership rights over any floor/part of any site/buildingby virtue of such transactions. A word of caution was also directed to beput, that in case a dispute arises between the co-sharers/co-owners, theBonly remedy would be to put the property to auction and the sale proceedsthereafter be distributed inasmuch the fragmentation/division of thebuilding/site by metes and bounds is specifically prohibited.

155. In our view, the High Court ought not to have stopped atthat. Having noted the stand of the Chandigarh Administration that theCconstruction and floor-wise sale of residential building was not permissiblein view of Rule 16 of the 2007 Rules, the High Court ought to have heldthat the statutory rules framed under 1952 Act expressly prohibitsfragmentation/division/bifurcation/apartmentalization of a residential unitin Phase-I of Chandigarh. The legislative intent as found in Rule 14 ofthe 1960 Rules has been clearly reiterated in Rule 16 of the 2007 Rules,Dwhich has been enacted under Section 5 read with Section 22 of the1952 Act. We are of the considered view that the High Court has erredin not considering the same.

156. Shri Patwalia fairly conceded that the said exercise has actedas a deterrent and number of such transactions amounting toapartmentalization have substantially reduced.E

157. No doubt that the High Court has rightly issued the directionsto safeguard the interest of the home buyers. However, we find that theHigh Court itself having found that after the repeal of the 2001 Rulesand enactment of the 2007 Rules, apartmentalization was not permissible,it ought not to have permitted a modus operandi which indirectly permitsFto do what was not permissible in law. In any case, taking into considerationthe heritage status of Phase-I, the High Court ought to have consideredthe matter in correct perspective.

158. We may gainfully refer to an article by Jonathan Glanceydated 11[th] December 2015 titled “Is this the perfect city?”, publishedby the BBC, which reads thus:G

“Of all the world’s ideal cities, Chandigarh has done remarkablywell, offering striking monumental architecture, a grid ofself-contained neighbourhoods, more trees than perhaps any Indiancity and a way of life that juggles tradition with modernity. Whilehistory tells us ideal cities are mostly best left on paper, ChandigarhH– perhaps one of the least likely appears to have succeeded against the grain.”

159. As could be seen from the said article, Chandigarh has doneremarkably well, offering striking monumental architecture, a grid ofself-contained neighbourhoods, more trees than perhaps any Indian cityand a way of life that juggles tradition with modernity.

160. At the cost of repetition, it must be noted that the CMP-2031itself, at more than one place, states that Chandigarh has been plannedas a green city with abundance of open space and to ensure that everydwelling has its adequate share of the three elements of Sun, Space andVerdure. The fragmentation/apartmentalization of single dwelling unitsin Phase-I of Chandigarh, in our view, will injure the ‘Lungs’ of the cityas conceptualized by Le Corbusier. In this regard, the observations ofthis Court in the case of Municipal Corporation of Greater Mumbai andOthers v. Kohinoor CTNL Infrastructure Company Private Limitedand Another[20], are highly instructive. In the said case, this Court held asfollows, regarding the implications of overcrowding of cities:

“13. ……When the cities are overcrowded, the roads are narrowand the traffic is increasing, the situation will be extremelyhazardous for the children and senior citizens. There will be nogreens in the buildings and the people will always crave for freshand pure air. The buildings without greens will add to the everincreasing temperature of the overcrowded cities and urban areas.To put it differently, all constructions without adequate green andrecreational areas will have serious impact on the environmentand human life…….”

161. The High Court ought to have been alive to the unique statusof Chandigarh and considered the matter from that perspective.

162. One other aspect that needs to be taken into consideration isthat on account of certain acts and omissions of the ChandigarhAdministration, in certain areas, there has been a chaotic situation. Asalready pointed out herein, on one hand, the 2001 Rules have beenrepealed in the year 2007 and the 2007 Rules have been enacted. Inview of Rule 16 of the 2007 Rules, there is a specific bar on fragmentationof sites or buildings. It is the specific stand of the ChandigarhAdministration that construction of apartments is not permissible. Onthe other hand, the 2017 Rules are enacted in such a way that there isscope for the construction of apartments. Not only that, but the Chandigarh A

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163. We may gainfully refer to the following observations madeby the Full Bench of the High Court in the case of Dheera Singh (supra),which read thus:

B“103. The Executive has in the instant case, with reference tothe 1952 Act, failed to live-up to the expectations of the residentsas instead of approaching the Ministry concerned with a concreteproposal on data-based information for onward consideration ofthe Legislature to rejuvenate the 1952 Act and make it more vibrantand alive to the issues in praesentia or in future, it has gone forCad hoc solutions taking refuge under Section 22 of the Act.Strangely, the amount of penalty or fine fixed by the Legislaturein the year 1952 (Sections 8, 13 & 15) has not been got revisedeven after the expiry of 60 years.

104. The principles governing the powers of delegated legislationare fairly settled. Such a power is exercisable to implement andDachieve the objects of a Statute within the framework of thelegislative policy; every delegate is subject to the authority andcontrol of the principal who can always direct, correct or cancelthe action of the subordinate legislation; the delegate in the garbof making rules cannot legislate on the fields covered by the Act.”E164. We are therefore inclined to issue certain directions so as toensure that the issue regarding apartmentalization is first examined bythe Heritage Committee so as to preserve the heritage status of CorbusianChandigarh. We are also inclined to direct the Chandigarh Administrationto take steps for amending the CMP-2031 and the 2017 Rules after theissue has been addressed by the Heritage Committee. However, weFfeel that such important issues cannot be left only to the discretion of theChandigarh Administration. We therefore find it necessary to direct thatafter the Chandigarh Administration takes decision to amend theprovisions, the same shall be placed before the Central Government forits consideration and final decision. We find that for protecting the heritagestatus of Corbusian Chandigarh, it is necessary that we should exerciseGour powers under Article 142 of the Constitution of India and issue certaindirections.

165. In that view of the matter, we hold that in view of Rule 14 ofthe 1960 Rules, Rule 16 of the 2007 Rules and the repeal of the 2001Rules, fragmentation/division/ bifurcation/apartmentalization of aHresidential unit in Phase- I of Chandigarh is prohibited.

166. We further issue the following directions:

(i) The Heritage Committee is directed to consider the issueof redensification in Phase-I of the city of Chandigarh;

(ii) Needless to state that the Heritage Committee would takeinto consideration its own recommendations that thenorthern sectors of Chandigarh “(Corbusian Chandigarh)”should be preserved in their present form;

(iii) The Heritage Committee shall also take into considerationthe impact of such redensification on the parking/trafficissues;

(iv) After the Heritage Committee considers the issues, theChandigarh Administration would consider amending theCMP-2031 and the 2017 Rules insofar as they are applicableto Phase-I in accordance with the recommendations of theHeritage Committee;

(v) Such amendments shall be placed before the CentralGovernment, which shall take a decision with regard toapproval of such amendments keeping in view therequirement of maintaining the heritage status of LeCorbusier zone;

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

a.the Chandigarh Administration shall not sanctionany plan of a building which ex-facie appears tobe a modus operandi to convert a single dwellingunit into three different apartments occupied bythree strangers; and b.no Memorandum of Understanding (MoU) oragreement or settlement amongst co-owners ofa residential unit shall be registered nor shall it beenforceable in law for the purpose of bifurcationor division of a single residential unit into floor-wiseapartments.

(vii) We further direct that hereinafter, the Central Governmentand Chandigarh Administration will freeze FAR and shallnot increase it any further;

(viii) That the number of floors in Phase-I shall be restricted tothree with a uniform maximum height as deemed appropriateby the Heritage Committee keeping in view the requirement A

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(ix) That the Chandigarh Administration shall not resort toformulate rules or bye-laws without prior consultation ofthe Heritage Committee and prior approval of the CentralGovernment.B167. Before we part with the judgment, we observe that it is hightime that the Legislature, the Executive and the Policy Makers at theCentre as well as at the State levels take note of the damage to theenvironment on account of haphazard developments and take a call totake necessary measures to ensure that the development does not damagethe environment. It is necessary that a proper balance is struck betweenCsustainable development and environmental protection. We thereforeappeal to the Legislature, the Executive and the Policy Makers at theCentre as well as at the State levels to make necessary provisions forcarrying out Environmental Impact Assessment studies before permittingurban development.

168. We direct the copy of this judgment to be forwarded to theDCabinet Secretary to the Union of India and the Chief Secretaries to allthe States to take note of the aforesaid observations. We hope that theUnion of India as well as the State Governments will take earnest stepsin that regard.

169. We must place on record our deep appreciation for theEvaluable assistance rendered by Shri P.S. Patwalia and Shri Ranjit Kumar,learned Senior Counsel appearing on behalf of the appellants and ShriK.M. Natraj, learned ASG, Shri Kapil Sibal, Shri Ajay Tewari and ShriGaurav Chopra, learned Senior Counsel appearing on behalf of therespondents.170. In the result, the appeals are allowed in the aforesaid terms.F171. Pending application(s), if any, shall stand disposed of in theabove terms. No order as to costs.

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Bibhuti Bhushan Bose

(Assisted by : Shubhanshu Das, LCRA)

Appeals allowed and directions issued.

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