Urban Development – Town Planning – Committee for Chandigarh Master Plan, 2031 (CMP-2031) – Issue of redensification in Phase-I sector in the city of Chandigarh – Fragmentation/division/bifurcation/apartmentalization of residential units – Held: In view of r.14 of the Chandigarh (Sale of Sites and Building) Rules, 1960, r.16 of the Chandigarh Estate Rules, 2007 and repeal of the Chandigarh Apartment Rules, 2001, fragmentation/division/bifurcation/ apartmentalization of residential units in Phase-I sector of Chandigarh is prohibited – On facts, authorities of the Chandigarh Administration were blindly sanctioning building plans, when from the building plans itself it was apparent that the same were in effect converting one dwelling unit into three apartments – Such a haphazard growth may adversely affect the heritage status of Phase-I of Chandigarh – The Committee for Chandigarh Master Plan, 2031 (CMP-2031) itself, at more than one place, states that Chandigarh has been planned as a green city with abundance of open space and to ensure that every dwelling has its adequate share of the three elements of Sun, Space and Verdure – Fragmentation/apartmentalization of single dwelling units in Phase-I of Chandigarh will 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 regarding apartmentalization to be first examined by the Chandigarh Heritage Conservation Committee – Chandigarh Administration to thereafter take steps for amending the CMP-2031 and the Chandigarh Building Rules (Urban), 2017 and subsequently, the same to be placed before the Central Government for its consideration and final decision – Chandigarh Estate Rules, 2007 – r.16 – Chandigarh (Sale of Sites and Building) Rules, 1960 – r. 14 – Chandigarh Building Rules (Urban), 2017 – Chandigarh Apartment Rules, 2001 – Constitution of India – Arts. 142.
Urban Development – Damage to environment on account of haphazard developments – Necessity of proper balance between sustainable development and environmental protection – The Legislature, the Executive and the Policy Makers at the Centre as well as at the State levels to make necessary provisions for carrying out Environmental Impact Assessment studies before permitting urban development.
Word and Phrases: “Fragment” and “Fragmentation” – Meaning of.
Allowing the appeals and issuing directions, the Court
HELD : 1. From the material placed on record, it appears that the modus operandi that is devised by the developers is that the allottee of the house would convey 50% of the share to the first purchaser, 30% to the second purchaser and 20% to the third purchaser. Thereafter, all the three purchasers would enter into either a settlement deed or a Memorandum of Understanding (MoU) under which the party having 50% share of the house is entitled to the entire ground floor with basement including the back courtyard but excluding the front courtyard and the staircase. The second purchaser having 30% share in the house would be entitled to the entire first floor excluding the staircase. The third purchaser having 20% share of the house would be entitled to the entire second floor including the roof of the second floor but excluding the staircase. It is clear that, the parties who entered into such an MoU, were conscious of the fact that as per the Rules of the Estate Office, it could not be mentioned in the sale deed that the possession of particular floor is given to the purchaser. It is also clear that the MoU clearly states that all the parties, after entering into such a document, would peacefully hold, use and enjoy their respective portions as their own property without any hindrance, interruption, claim or demand whatsoever from each other. In any case, what is to be found is the real intention behind the transaction. When the transaction clearly shows that it is being entered into for the purpose of constructing three different apartments on each floor and also mentions that the same is not permissible under the existing rules, the intention of the parties is to construct three different units which are disintegrated. This is nothing else but fragmentation. It is an attempt to by-pass the statutory prohibition. [Paras 109, 111, 113 and 116][656-H; 657-A-C, E-F; 658-B-D; 659-C]
2. In the teeth of the undertaking which the owner is required to furnish in an application for obtaining the occupation certificate; and the specific stand of Chandigarh Administration that it does not permit construction of apartments, it is difficult to appreciate as to how building plans have been sanctioned which ex-facie show that they are nothing else but apartments. It is clear that the modus operandi of the developers is, in effect, resulting into apartmentalization of the buildings. What is not permissible in law after the repeal of the Chandigarh Apartment Rules, 2001 on 1st October 2007, and enactment of Rule 16 of the the Chandigarh Estate Rules, 2007, is indirectly being permitted 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 the 2007 Rules, and recalling an attempt to reintroduce apartmentalization in the draft Committee for Chandigarh Master Plan, 2031 (CMP-2031), would be permitting to do something indirectly which is not permissible in law. In order to maintain the “Corbusian Chandigarh” status of Phase-I of Chandigarh, no redensification is to be done without the permission of the Heritage Committee. Undisputedly, permitting three apartments to be constructed in one dwelling unit would result in increasing the density in population in the Le Corbusier zone. This cannot be done without the same being approved by the Heritage Committee and the Central Government. [Paras 127 and 128][663-F-H; 664-A-B]
4. Taking overall view of the matter, it is clear that permitting redensification in Phase-I, which has heritage value, on account of being “Corbusian Chandigarh”, without the same being approved by the Heritage Committee, is contrary to the Committee 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 dwelling units to be triple of the plots available. Though on account of repeal of the 2001 Rules in the year 2007 and on account of Rule
16 of the 2007 Rules, the High Court itself holds that apartmentalization is not permissible; it goes on to hold that though the developers/builders are in effect indulging into construction of three apartments in a building, the same does not amount to apartmentalization. This would amount to permitting something indirectly which is not permitted directly. The authorities of the Chandigarh Administration are blindly sanctioning building plans, when from the building plans itself it is apparent that the same are in effect converting one dwelling unit into three apartments. Such a haphazard growth may adversely affect the heritage status of Phase-I of Chandigarh which is sought to be inscribed as a UNESCO’s heritage city. [Para 153][671-B-E]
5. The Committee for Chandigarh Master Plan, 2031 (CMP2031) itself, at more than one place, states that Chandigarh has been planned as a green city with abundance of open space and to ensure that every dwelling has its adequate share of the three elements of Sun, Space and Verdure. The fragmentation/apartmentalization of single dwelling units in Phase-I of Chandigarh will injure the ‘Lungs’ of the city as conceptualized by Le Corbusier. This Court is therefore inclined to issue certain directions so as to ensure that the issue regarding apartmentalization is first examined by the Heritage Committee so as to preserve the heritage status of Corbusian Chandigarh. This Court is also inclined to direct the Chandigarh Administration to take steps for amending the CMP-2031 and the Chandigarh Building Rules (Urban), 2017 after the issue has been addressed by the Heritage Committee. However, such important issues cannot be left only to the discretion of the Chandigarh Administration. It is therefore necessary to direct that after the Chandigarh Administration takes decision to amend the provisions, the same shall be placed before the Central Government for its consideration and final decision. For protecting the heritage status of Corbusian Chandigarh, it is necessary to exercise powers under Article 142 of the Constitution of India and issue certain directions. [Paras 160 and 164][673-B-C; 674-E-G]
6. In view of Rule 14 of the Chandigarh (Sale of Sites and Building) Rules, 1960, Rule 16 of the Chandigarh Estate Rules, 2007 and the repeal of the Chandigarh Apartment Rules, 2001, fragmentation/division/bifurcation/ apartmentalization of a residential unit in Phase-I of Chandigarh is prohibited. [Para 165][674-G-H]
7. The following directions were issued: (i) The Heritage Committee shall consider the issue of redensification in Phase-I of the city of Chandigarh; (ii) The Heritage Committee would take into consideration its own recommendations that the northern sectors of Chandigarh “(Corbusian Chandigarh)” should be preserved in their present form; (iii)The Heritage Committee shall also take into consideration the impact of such redensification on the parking/traffic issues; (iv) After the Heritage Committee considers the issues, the Chandigarh Administration would consider amending the CMP-2031 and the 2017 Rules insofar as they are applicable to Phase-I in accordance with the recommendations of the Heritage Committee; (v) Such amendments shall be placed before the Central Government, which shall take a decision with regard to approval of such amendments keeping in view the requirement of maintaining the heritage status of Le Corbusier zone; (vi) Till a final decision as aforesaid is taken by the Central Government: (a.) the Chandigarh Administration shall not sanction any plan of a building which ex- facie appears to be a modus operandi to convert a single dwelling unit into three different apartments occupied by three strangers; and (b.) no Memorandum of Understanding (MoU) or agreement or settlement amongst co-owners of a residential unit shall be registered nor shall it be enforceable in law for the purpose of bifurcation or division of a single residential unit into floor-wise apartments. (vii) The Central Government and Chandigarh Administration will freeze FAR and shall not increase it any further; (viii) The number of floors in Phase-I shall be restricted to three with a uniform maximum height as deemed appropriate by the Heritage Committee keeping in view the requirement to maintain the heritage status of Phase-I; and (ix) The Chandigarh Administration shall not resort to formulate rules or bye-laws without prior consultation of the Heritage Committee and prior approval of the Central Government. [Para166][675A-H; 676-A-B]
8. It is high time that the Legislature, the Executive and the Policy Makers at the Centre as well as at the State levels take note of the damage to the environment on account of haphazard developments and take a call to take necessary measures to ensure that the development does not damage the environment. It is necessary that a proper balance is struck between sustainable development and environmental protection. The Legislature, the Executive and the Policy Makers at the Centre as well as at the State levels to make necessary provisions for carrying out Environmental Impact Assessment studies before permitting urban development. [Para 167][676-B-D] Municipal Corporation of Greater Mumbai and Others v. Kohinoor CTNL Infrastructure Company Private Limited and Another (2014) 4 SCC 574- relied on. New Delhi Municipal Council and Others v. Tanvi Trading 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 Pradesh and Others [1961] 3 SCR 185; Tilak Raj Bakshi v. Avinash Chand Sharma (Dead) Through Legal
Representatives and Others (2020) 15 SCC 605 : [2019]
10 SCR 251; Kochkunju Nair v. Koshy Alexander and Others (1999) 3 SCC 482 : [1999] 2 SCR 169; Jai Singh and Others v. Gurmej Singh (2009) 15 SCC 747 : [2009] 1 SCR 413; Chandigarh Administration v. Chander Parkash Malhotra and Others Civil Appeal No. 4974 of 1992 dated 24th November 1992; Dr. K.A. Dhairyawan and Others v. J.R. Thakur and Others [1959] SCR 799; Rev. FR. K.C. Alexander v. State of Kerala (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 Sports Club and Another v. Union of India and Others (2009)
15 SCC 705 : [2009] 13 SCR 710 - referred to.
Chander Parkash Malhotra v. Ved Parkash Malhotra and Others 1991 SCC OnLine P&H 245; Hardit Singh and Others v. Gurmukh Singh and Others 1918 SCC OnLine PC 2; Sant Ram v. Daya Ram and Others AIR 1961 P&H 528; R.G. Hiremath and Another v. T. Krishnappa 1977 SCC OnLine Kar 96; Laxmipat
Singhania v. Larsen and Toubro, Ltd. 1949 SCC OnLine Bom 11; Saiffuddin v. The Commissioner of Income Tax (129) 1985 SCC OnLine Raj 97; Sh. Chander Parkash Malhotra v. Sh. R.B.S. Chahal 1993 SCC OnLine P&H 1179; Arvind Kapoor v. Kumud
Kapoor and Another [Punjab & Haryana High Court Regular Second Appeal No. 1562 of 2012 dated 28.05.2019] and Dheera Singh v. U.T. Chandigarh Admn. and Others 2012 SCC OnLine P&H 21473 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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