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

The Judgment of the Court was delivered by A INDEX* I. BACKGROUND………………………….... Paras 3 to 12 II. PROCEEDINGS BEFORE THE HIGH COURT……………………….......... Paras 13 to 19 B III. SUBMISSIONS OF APPELLANTS……..... Paras 20 to 29 IV. SUBMISSIONS OF RESPONDENTS…...... Paras 30 to 40 V. STATUTORY PROVISIONS…………….... Paras 41 to 51 VI. FINDINGS OF THE HIGH COURT........... Paras 52 to 56 C VII. REPORT OF THE BOARD OF ‘INQUIR AND HEARING’…………………………... Paras 57 to 63 VIII. CHANDIGARH MASTER PLAN-2031…... Paras 64 to 77 IX. CONSIDERATION OF CITED CASES….. Paras 78 to 91 D X. CONSIDERATION OF ISSUES………….. Paras 92 to 144 XI. ENVIRONMENTAL ISSUES………………. Paras 145 to 152 XII. CONCLUSION…………………………….. Paras 153 to 171 B. R. GAVAI, J. E

1Copy pinpoint1. Leave granted.

2Copy pinpoint2. “Let this be a new town, symbolic of freedom of India unfettered by the traditions of the past…an expressions of the nation’s faith in the future”. These were the words of Pandit Jawaharlal Nehru, India’s First F Prime Minister, while laying down the founding principles of a new city for Capital of the State of Punjab. I. BACKGROUND:

3Copy pinpoint3. After India attained independence in the year 1947, the Government of Punjab in consultation with the Government of India G approved the site for the new Capital of the State in March 1948. The new city was designed by French Architect Le Corbusier in association with other architects, namely, Pierre Jeanneret, Jane B. Drew and Maxwell Fry. The city was planned as a living example of urban design, *Ed. Note : Pagination in the Index is as per the original judgment. H

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A landscaping and architecture. It was a city to be created with the use of ordinary construction materials and embellished with integral works of art. Chandigarh’s monumental architecture as enunciated by Le Corbusier is based on the principles of town planning concept of Sun, Space, and Verdure. Le Corbusier incorporated principles of light, space and greenery in the plan and used the human body as a metaphor – the ‘head’ contained the Capital Complex, the ‘heart’ being the Commercial Centre, i.e., Sector 17, lungs (the leisure valley, innumerable open spaces and sector greens), the intellect (the cultural and educational institutions), the viscera (the industrial area), and the ‘arms’ having academic and leisure facilities like open courtyards etc. The circulation system was conceived as having seven types of roads known as 7Vs.

4Copy pinpoint4. Chandigarh has been envisaged as an administrative city with hierarchical distribution of population being such, that the population density in the northern sectors is low, which increases towards the southern sectors. Chandigarh has been planned as a low-rise city, and has been so developed that even after sixty years of its inception, it retains the original concept to a large extent. This is how the concept of this “beautiful city” was born.

5Copy pinpoint5. On division of the State of Punjab into States of Punjab and Haryana, the city was made a Union Territory (UT), and became the E Capital for both the States. The city of Chandigarh was developed into two phases, Phase-I having Sectors 1 to 30 and Phase-II having Sectors 31 to 47. Phase- I was designed for low-rise plotted development for a total population of 1,50,000. Phase-II Sectors were to have a much higher density as compared to Phase-I Sectors.

6Copy pinpoint6. In the year 1952, the Union of India, in order to regulate development in the city of Chandigarh, enacted the Capital of Punjab (Development and Regulations) Act, 1952 (hereinafter referred to as “the 1952 Act”). In the year 1960, the Government of Punjab, in exercise of the powers conferred by Sections 5 and 22 of the 1952 Act, made the Chandigarh (Sale of Sites and Building) Rules, 1960 (hereinafter referred G to as “the 1960 Rules”). Rule 14 of the 1960 Rules prohibits fragmentation or amalgamation of any site or building. The validity of Rule 14 of the 1960 Rules was challenged before the High Court of Punjab & Haryana (for short, “High Court”) in the case of Chander Parkash Malhotra v. Ved Parkash Malhotra and Others1. Vide its judgment in the said 1 H 1991 SCC OnLine P&H 245

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 611 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

case, the High Court held the said Rule 14 to be ultra vires to the A Constitution of India. However, this Court, in the case of Chandigarh Administration v. Chander Parkash Malhotra and Others2, reversed the said judgment of the High Court to the extent it declared Rule 14 of the 1960 Rules to be ultra vires.

7Copy pinpoint7. In the year 2001, the Administrator, UT of Chandigarh, in exercise of powers conferred under Sections 5 and 22 of the 1952 Act, framed the Chandigarh Apartment Rules, 2001 (hereinafter referred to as “the 2001 Rules”). By virtue of the 2001 Rules, even in case of single residential units, it was permissible to sub-divide it into more than one apartment. The citizens of UT of Chandigarh vehemently opposed the construction of apartments, which according to them, had the effect of destroying the character of the city. In view of the public outcry, the 2001 Rules were repealed by notification dated 1st October 2007. In the same year, i.e., 2007, the 1960 Rules were also repealed. The Administrator, UT of Chandigarh, in exercise of powers conferred under Section 22 of the 1952 Act, framed the Chandigarh Estate Rules, 2007 D (hereinafter referred to as “the 2007 Rules”) on 7th November 2007. Rule 16 of the 2007 Rules again prohibited fragmentation/amalgamation of any site or building.

8Copy pinpoint8. In the year 2009, a Committee for Chandigarh Master Plan, 2031 (for short, “CMP-2031”) came to be constituted. In the year 2010, E a Committee of Experts (for short, “Expert Committee”) came to be constituted to look at both the original concept of the city of Chandigarh as well as the maintenance of important heritage buildings in the UT of Chandigarh.

9Copy pinpoint9. In the Draft CMP-2031, the 2001 Rules were re- introduced. F Prior to the finalization of the CMP-2031, objections were invited. A Board of “Inquiry and Hearing” (hereinafter referred to as, “the said Board”) was constituted to look at the grievances of the public at large. One of the major objections raised to the draft CMP-2031 was with regard to re-introduction of the 2001 Rules. The said Board, after considering objections, recommended that the re- introduction of the G 2001 Rules should be deleted, and re- densification of any government residential/institutional pocket in Phase-I sectors should only be done with the prior approval of the Chandigarh Heritage Conservation Committee (for short, “Heritage Committee”). 2 Civil Appeal No. 4974 of 1992 dated 24 th November 1992 H

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10Copy pinpoint10. The aforesaid recommendations were accepted by the Central Government and all references to the apartments in the Draft CMP-2031 were deleted from the Final CMP- 2031, which was notified under Section 4(1)(f) of the 1952 Act and Sections 3, 4, 5 and 11 of the Punjab New Capital (Periphery) Control Act, 1952 and under Article 239 of the Constitution of India. B

11Copy pinpoint11. Noticing that in spite of the repeal of the 2001 Rules and the fact that further fragmentation of the property was prohibited as per Rule 16 of the 2007 Rules, a large number of single dwelling units were being surreptitiously converted into apartments, the appellants-Association filed a Public Interest Litigation being CWP No. 18559 of 2016 before the High Court. It was the grievance of the appellants that certain developers were purchasing the plots, constructing three apartments thereon and thereafter selling them to three different persons. It was sought to be contended that though the 2001 Rules were repealed, thereby prohibiting the construction of apartments on plots meant for single dwelling, and though the 1960 Rules and the 2007 Rules prohibited the fragmentation/amalgamation, some unscrupulous elements were attempting to construct and sell the apartments by indulging into illegal practices. The prayer sought in the petition before the High Court was for restraining the respondents from permitting residential plots in the UT of Chandigarh which were allotted as single dwelling units to be constructed or utilized as apartments. A prayer was also sought directing the respondent-Chandigarh Administration to take appropriate action against the offending owners for violation of the undertakings submitted by them while applying for occupation certificate.

12Copy pinpoint12. The High Court, vide order dated 15th September 2016, issued notice in the said writ petition. In the said proceedings, an application bearing No. 16263 of 2016 came to be filed praying for stay of conversion of single dwelling units into apartments. A reply came to be filed in the said writ petition by the UT of Chandigarh, stating therein that the Chandigarh Administration does not permit a residential house to be converted into an apartment on account of the fact that the 2001 Rules now stand repealed. II. PROCEEDINGS BEFORE THE HIGH COURT:

13Copy pinpoint13. Since, in spite of its specific stand, Chandigarh Administration was not taking any steps to prevent fragmentation/apartmentalisation of H

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 613 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

single dwelling units, a Special Leave Petition (Civil) being No. 15789 of A 2017 came to be filed before this Court. This Court, vide order dated 24th May 2017, allowed to withdraw the said petition.

14Copy pinpoint14. The appellants-Association thereafter filed another application being C.M. No. 1580 of 2018 in CWP No. 18559 of 2016 seeking appropriate directions to be issued to the Chandigarh Administration to restrain percentage sale or part of share sale of freehold residential houses. In the said application, notice came to be issued by the High Court on 5th February 2018. Since no orders were passed in the said application, another application being C.M. No.19649 of 2019 came to be filed on 16th December 2019, praying for interim directions to the Chandigarh Administration to identify the residential plots which were fragmented into apartments. On 18th February 2020, notice came to be issued in the said application. The appellants-Association again filed SLP(Civil) No. 6642 of 2021 before this Court. This Court, vide order dated 7th May 2021, disposed of the said SLP by requesting the High Court to decide the said writ petition within a period of four months. D

15Copy pinpoint15. In the meantime, the High Court had appointed an amicus curiae to assist the court. On 27th July 2021, the High Court passed an interim order directing the Chandigarh Administration to carry out an exercise whereby the properties/buildings were to be identified wherein, shares be it to the extent of 50%, 30% or 20% has been sold/transferred to a person outside the family of the original owner/shareholder. This was to be done on the basis of the record maintained in the office of the Estate Officer. The second step was to carry out a physical inspection of such identified buildings/dwelling units, to find out as to whether the sale of shares has actually translated into the buyer occupying an independent floor in the otherwise composite dwelling unit, or to find out as to whether independent floors are in the process of being constructed.

16Copy pinpoint16. The said order came to be challenged before this Court in SLP(Civil) Nos. 13120 and 12562 of 2021. The survey which was directed to be conducted by the High Court vide its order dated 27th July 2021, came to be stayed by this Court vide order dated 9th August 2021. G This Court, on being informed that the survey had already been completed, vide order dated 6th September 2021, clarified that the High Court can proceed with the hearing of the writ petition pending before it after taking into consideration the report. H

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17Copy pinpoint17. At the stage of hearing, the High Court considered the following issues 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 framed thereunder? B Issue No.2 - Is sale of share(s) by owner or co-owner of a residential building prohibited under the 1952 Act or Rules made thereunder? Issue No.3 - Does sale of share(s) by owner or co- owner in a residential building amount to ‘fragmentation’? C Issue No.4 - What is the status of a co-owner by virtue of purchase of share(s) in a residential building? Issue No.5 - Can occupation/possession of a specific portion of the joint property be termed as apartmentalization? D Issue No.6 - Whether the residential building constructed on a residential plot in UT Chandigarh meant for single family use and to be treated as a Single Dwelling Unit?”

18Copy pinpoint18. Vide the impugned judgment dated 23rd November 2021, the High Court dismissed the writ petition. The High Court held that there was no provision under the 1952 Act or the Rules framed thereunder governing transfer of shares in relation to a site or building whether owned singly or under joint ownership. However, the High Court held that the sale of share(s) out of a building/site by the allottee(s)/ transferee(s) was not barred, and rather was permissible under the general civil law. It further held that the status of such building/site, however, even after the sale of share(s) continues to be under joint ownership. It further held that for constituting a fragmentation, there has to be an element of permanent severance. Mere construction of three floors on a private plot and utilization of the same as independent units would not amount to fragmentation. It held that unless there has been a sub-division of the building duly recognized by the Estate Officer along with proportionate share in common areas and common facilities, the same would not amount to apartmentalization.

19Copy pinpoint19. The High Court, however, found that the real estate agent/ developer/seller, in order to extract maximum premium, would tend to paint a picture to the prospective buyer that by virtue of purchase of a

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 615 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

share in the building, he would not only be entitled to have exclusive possession but also ownership rights. The High Court observed that the same was not permissible and the purchaser, by purchase of share(s), only became a co-owner/co-sharer in the entire building to the extent of shareholding. In the eventuality of the dispute arising between the co-sharers/co-owners, the only remedy would be to put the property to auction and they would be only entitled to the sale proceeds as per the share(s). It therefore issued certain directions to the UT of Chandigarh in order to protect the interests of such innocent purchasers. Being aggrieved by the impugned judgment, the appellants-original writ petitioners are before this Court. III. SUBMISSIONS OF APPELLANTS: C

20Copy pinpoint20. We have heard Shri P.S. Patwalia, learned Senior Counsel appearing on behalf of the appellants in the main matter, Shri Ranjit Kumar, learned Senior Counsel appearing on behalf of the appellants in appeal arising out of SLP(C) No. 5489 of 2022, Shri K.M. Natraj, learned Additional Solicitor General (ASG) appearing on behalf of respondent D No.1 in both the appeals, Shri Kapil Sibal, learned Senior Counsel appearing on behalf of respondent No.6 in the main matter and for respondent Nos. 7, 8 and 9 in appeal arising out of SLP(C) No. 5489 of 2022 and Shri Gaurav Chopra and Shri Ajay Tewari, learned Senior Counsel appearing on behalf of the applicant(s)/caveator(s) in both the E appeals.

21Copy pinpoint21. 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 on single dwelling unit, it will jeopardize the original character of the city. F He further submitted that a perusal of the report of the said Board itself would reveal that, though the Draft CMP-2031 provided for the re-introduction of the apartments, the said Board had recommended against it, and the said recommendation was accepted.

22Copy pinpoint22. Shri Patwalia submitted that, though the 2001 Rules permitted G apartmentalization, on account of hue and cry of public at large, the same were repealed in the year 2007. He further submitted that the 1960 Rules as well as the 2007 Rules specifically prohibited fragmentation or amalgamation of any site or building. However, through a certain modus operandi, the builders/developers were constructing three H

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A apartments on three floors, thereafter selling the said apartments to three persons, who would enter into a Memorandum of Understanding (MoU). Under the MoU, the person occupying the ground floor and basement would get 50% share in the plot, the person occupying the first floor would get 30%, and the person occupying the second or third floor would get 20%. He submitted that therefore, what is directly prohibited by law, is being indirectly done by the builders/developers. He submitted that, though a specific undertaking is given not to convert the site/building into apartments, the builders/developers were violating the said undertaking openly. He further submitted that though the Chandigarh Administration has clearly admitted that it was not permitting the construction of such apartments, and that under the law, such apartments were prohibited, it was sanctioning the building plans which ex-facie showed that they were for the construction of three apartments. He submitted that the High Court itself has observed that the Chandigarh Administration has not been alive to such illegalities being committed by the unscrupulous builders/developers. D

23Copy pinpoint23. Shri Patwalia submitted that through such modus operandi of the developers/builders, and inaction on the part of Chandigarh Administration, what is prohibited in law, is being permitted indirectly.

24Copy pinpoint24. Shri Patwalia further submitted that the CMP-2031 prohibits construction of apartments. He submits that though CMP-2031 is binding on the respondents under which apartmentalization is not permissible, the apartments are being indirectly permitted to be constructed and sold, giving rise to illegal transactions. It is submitted that on one hand, the Chandigarh Administration in its affidavit states that it does not permit construction of apartments, on the other hand, it is permitting the same indirectly.

25Copy pinpoint25. Shri Patwalia submitted that when Chandigarh was conceptualized, it was decided that Phase-I will have bungalows in the residential areas having a green area in the frontyard and backyard of the houses. However, on account of apartmentalisation, the green areas now have been converted into concrete areas, and the very concept of having a green city is being defeated.

26Copy pinpoint26. Shri Ranjit Kumar also submitted that the learned Judges of the Division Bench of the High Court have erred in holding that mere construction of three floors on a private plot and utilization of the same as independent units would not amount to fragmentation. He submitted

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 617 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

that, the finding of the High Court that fragmentation will take place only if there is a division of the site or division of the building with an element of exclusive ownership, is patently erroneous. He submitted that the Chandigarh Administration is taking a totally contradictory stand. It is submitted that, on one hand it is admitted by the Chandigarh Administration that it is not permissible to build apartments on a plot allotted to a single dwelling unit and on the other hand, it is admitting documents for registration which, in effect, permit a single plot to be fragmented into three apartments.

27Copy pinpoint27. Shri Ranjit Kumar submitted that Chandigarh has been included in the Tentative United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage List due to its outstanding universal value, and the same needs to be maintained by prohibiting haphazard developments which will take away its distinct character.

28Copy pinpoint28. Shri Kapil Sibal also supported the contention as raised on behalf of the appellants. He submitted that rampant developments are being permitted while expanding urban areas without taking into consideration its impact on environment. He submitted that when such developments are permitted, no studies are conducted to find out as to whether the necessary infrastructure like water, sewage, roads etc. exists. He submitted that even in the CMP-2031, it has been recommended that an Effective Environment Management Plan has to be devised for the entire region including Chandigarh, which includes the environmental strategy, monitoring regulation, institutional capacity building and economic incentives. It is submitted that though such a recommendation is made in the CMP-2031, the Chandigarh Administration is permitting construction of single dwelling units into apartments. He submitted that this is a fit case wherein this Court should exercise its powers under Article 142 of the Constitution of India, and direct that Environmental Impact Assessment (for short, “EIA”) is to be mandatorily carried out before permitting expansion of urban areas.

29Copy pinpoint29. All the learned counsel therefore submitted that the impugned judgment of the High Court needs to be set aside and a mandamus needs to be issued to the respondents restraining them from permitting construction of apartments on single dwelling units. They further submitted that a direction also needs to be issued to the Chandigarh Administration to take action against the persons, who, in contravention of the Rules, are constructing apartments on single dwelling units. H

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A IV. SUBMISSIONS OF RESPONDENTS:

30Copy pinpoint30. Shri Ajay Tewari, on the contrary, submitted that the apprehension as raised by the appellants are totally unwarranted. It is submitted that the CMP-2031 duly takes care of the environmental aspects so as to ensure that the present character of the city on its greenness is not compromised. He submitted that the CMP-2031 would reveal that the growth of population in Chandigarh as per the 2011 Census is less than the predicted growth. He submitted that the growth rate of merely 17.10% from the years 2001 to 2011 is the slowest since its inception. It is submitted that the population in the year 2011 is 10,54,686 with an addition of 1,54,051 during the last decade. He further submitted that, as a matter of fact, the forest coverage in Chandigarh has doubled in the last 20 years.

31Copy pinpoint31. Shri Tewari submitted that a ‘transferee’ has been defined in the 1952 Act to mean “a person (including a firm or, other body of individuals, whether incorporated or not) to whom a site or building is transferred in any manner whatsoever, under this Act and includes his successors and assigns”. He therefore submitted that the 1952 Act itself permits a transfer to be made to more than one individual and as such, the contention that, there cannot be more than one apartment in a single dwelling unit, is without substance.

32Copy pinpoint32. Shri Tewari further submitted that Rule 4 of the Chandigarh Lease-Hold of Sites and Building Rules, 1973 (hereinafter referred to as “the 1973 Rules”) provides that the Chandigarh Administration may demise sites and buildings at Chandigarh on lease for 99 years. It further provides that the lease may be given by allotment or by auction in accordance with these Rules. He submitted that Rule 17 of the 1973 Rules permits the lease to be taken jointly by more than one person. It is submitted that when the lease itself is permitted to be taken jointly by more than one person, then there is no merit in the stand that a building cannot be constructed on a site having more than one apartment. Shri Tewari further submitted that Rule 13 of the 2007 Rules also permits an allotment to be taken jointly by more than one person. The only requirement in such a case is that the liability to pay premium as well as the rent or any penalty under these Rules shall be joint and several.

33Copy pinpoint33. Shri Tewari further submitted that a perusal of Chandigarh Building Rules (Urban), 2017 (for short, “the 2017 Rules”) which were H

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 619 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

enacted in exercise of the powers conferred by the 1952 Act, would A also show that more than one apartment is permitted to be constructed on single dwelling unit. He submitted that under sub-clause (a) of Clause (22) of Rule 3 of the 2017 Rules, a ‘residential building’ is defined to be “a building used or constructed or adapted to be used wholly or principally for human habitation and includes all garages, or other out-buildings appurtenant thereto”. Under Clause (32) thereof, ‘dwelling unit’ has been defined to be “a building or a part thereof which is used or is intended to be used by a person or family for habitation comprising of kitchen, toilet and room”. Clause (82) thereof defines ‘storey’ as “any horizontal division of a building so constructed as to be capable of use as a living apartment, although such horizontal division may not extend over the whole depth or width of the building but shall not include mezzanine floor”. He submitted that Rule 4 thereof talks about ‘residential use’, which exhaustively deals with the entire details with regard to the maximum height of the building, maximum area, minimum area and the courtyards. D

34Copy pinpoint34. Shri Tewari submitted that the High Court has rightly held that an apartment can be construed to be such only if it was an apartment as per the meaning of apartment given in the 2001 Rules. He submitted that the provisions of the 2001 Rules are similar to the provisions of the Haryana Apartment Ownership Act, 1983. He submitted that under the 2001 Rules, each apartment owner is entitled to the exclusive ownership E and possession of the apartment in accordance with the declaration. However, when more than one person jointly construct a building on a plot and occupy one floor each, they are not entitled to exclusive ownership of the apartment but have shares in the joint property. The learned Senior Counsel relies on the judgment of this Court in the case of Kochkunju F Nair v. Koshy Alexander and Others3 in support of the proposition that all co-owners have equal rights and coordinate interest in the property, though their shares may be either fixed or indeterminate. He submitted that this Court has held that each co-owner has, in theory, an interest in every infinitesimal portion of the subject matter, and each has the right, irrespective of the quantity of his interest, to be in possession of every G part and parcel of the property, jointly with others. It is submitted that as such, the modus operandi adopted is wholly permissible, whereby, each of the co-sharers would be entitled to be in possession of the part assigned to them jointly with others. He relies on the judgment of the Privy Council 3 (1999) 3 SCC 482 H

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A in the case of Hardit Singh and Others v. Gurmukh Singh and Others4 in support of the proposition.

35Copy pinpoint35. Shri Tewari relies on the judgment of the Division Bench of the High Court in the case of Sant Ram v. Daya Ram and Others5 in support of the proposition that though the Mitakshara School of Hindu B Law recognized ownership of each co-parcener over the whole of joint property and over each part thereof, which bears some similarity to joint tenancy of English law; the Dayabhaga School adhered to the doctrine of ownership in specified shares in the undivided property having similar features as in tenancy in common. It is therefore submitted that the co-sharers are entitled to jointly construct a building as per their own shares. It is submitted that this Court in the case of Jai Singh and Others v. Gurmej Singh6 has approved this legal position. Shri Tewari further relies on the judgment of this Court in the case of Tilak Raj Bakshi v. Avinash Chand Sharma (Dead) Through Legal Representatives and Others 7 in support of the proposition that assignment in favour of a party would not amount to fragmentation.

36Copy pinpoint36. Shri Tewari, in a nutshell, submitted that the dwelling units cannot be construed to be the same as apartments under the 2001 Rules, and therefore it is permissible for more than one person to construct a building jointly and occupy the shares of building as per their respective shares. It is submitted that, when the Rules and Provisions permitting three storeys are not challenged, it would not be permissible for the appellants to contend that the construction of three storeys, wherein three different persons reside, is not permissible in law. It is submitted that the CMP-2031 has considered everything and further that the said CMP-2031 has also not been challenged. F

37Copy pinpoint37. Shri Tewari submitted that if the contention as raised on behalf of the appellants is accepted, then an anomalous situation would arise inasmuch as co-owners who are part of one family would be entitled to construct three apartments whereas others could not. This would lead to a situation where some co-owners are superior to others. G

38Copy pinpoint38. Shri Gaurav Chopra submitted that there is nothing in law which prohibits three strangers to purchase a plot from one person and 4 1918 SCC OnLine PC 2 5 AIR 1961 P&H 528 6 (2009) 15 SCC 747 7 H (2020) 15 SCC 605

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 621 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

then develop the said plot by constructing a building having three different floors and occupy the said floors. He submitted that there is no bar for the same either under Rule 14 of the 1960 Rules or Rule 16 of the 2007 Rules. He submitted that if the contention of the appellants is accepted, it would lead to an anomalous situation wherein a person, who has in a bona fide manner purchased a share of a building and consequently occupied a floor of such a building, would be deprived of selling the same. He submitted that such an inference would put unreasonable restrictions on the rights of the person to deal with the property. Shri Chopra submitted that a perusal of the CMP-2031 itself would reveal that the original concept itself included re-densification of Phase-I in order to accommodate the growing population of the city. The learned C Senior Counsel submitted that the Expert Committee constituted for preparation of CMP-2031 has considered all these aspects. He submitted that the CMP-2031 itself would show that Phase-I (Sectors 1 to 30) had a holding capacity of 34 persons per acre whereas the present density is only 26 persons per acre. It is therefore submitted that the CMP- 2031 D itself 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 elaborate exercise by the experts in the field, permits such a development, there is nothing which would prohibit such development.

39Copy pinpoint39. Shri Chopra further submitted that Section 5 of the Transfer of Property Act, 1882 (for short, “the TP Act”) itself permits transfer of property to one or more living persons. He submitted that Section 7 of the TP Act further permits a person to transfer such property either wholly or in part. It is contended that Section 10 of the TP Act provides that any condition or limitation absolutely restraining the transferee or any other person claiming under him from parting with or disposing of his interest in the property is void. It is further submitted that Section 44 of the TP Act also permits one of two or more co-owners of immoveable property to transfer his share of such property or any interest therein. It is submitted that if the contention of the appellants is accepted, it would be contrary to the provisions of the TP Act. G

40Copy pinpoint40. Shri K.M. Natraj submitted that ownership of a building is different from ownership of a land. He therefore submitted that it is not necessary that a person who owns a building, would also own the land. He submitted that there is nothing in law which prohibits a building to be constructed and owned by three different persons. He relies on the H

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A judgments of this Court in the cases of Dr. K.A. Dhairyawan and Others v. J.R. Thakur and Others8 and Rev. FR. K.C. Alexander v. State of Kerala9. He also relies on the judgment of the Karnataka High Court, Bombay High Court and Rajasthan High Court in the cases of R.G. Hiremath and Another v. T. Krishnappa10, Laxmipat Singhania v. Larsen and Toubro, Ltd.11 and Saiffuddin v. The Commissioner of B Income Tax (129)12. The learned ASG also submitted that when the building regulations permit construction of three floors, the relief as sought by the appellants cannot be granted. V. STATUTORY PROVISIONS:

41Copy pinpoint41. For appreciating the rival contentions, it will be necessary to refer to certain statutory provisions.

42Copy pinpoint42. The 1952 Act came to be enacted for facilitating the construction of the New Capital of Punjab at Chandigarh. The Statement of Objects and Reasons of the 1952 Act would reveal that the said Act D was enacted for vesting legal authority with the State Government to regulate the sale of building sites and to promulgate building rules on the lines of Municipal Bye-laws so long as a properly constituted local body does not take over the administration of the city. Clause (k) of Section 2 of the 1952 Act defines ‘transferee’, which reads thus:

E “2. Definitions.- ………….. (k) “transferee” means a person (including a firm or other body of individuals, whether incorporated or not) to whom a site or building is transferred in any manner whatsoever, under this Act F and includes his successors and assigns.”

43Copy pinpoint43. It is sought to be urged on behalf of the respondents that ‘transferee’ as defined under the 1952 Act means a person including a firm or other body of individuals, whether incorporated or not, to whom a site or building is transferred in any manner whatsoever, under this Act G and includes his successors and assigns. It is also submitted that under the 1973 Rules, a lease could be jointly granted to more than one person. 8 [1959] SCR 799 9 (1973) 2 SCC 737 10 1977 SCC OnLine Kar 96 11 1949 SCC OnLine Bom 11 12 H 1985 SCC OnLine Raj 97

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 623 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

It is therefore submitted that there could be no impediment in the A construction of three apartments on three floors which could be occupied by three different persons. On the contrary, it is sought to be urged on behalf of the appellants that the term ‘person’ has to be used applying the principle of ejusdem generis. It is submitted that the words “other body of individuals, whether incorporated or not” are preceded by a B word ‘firm’ and as such, it should be construed that the said term would be applicable only to a company, corporation, society etc.

44Copy pinpoint44. Section 3 of the 1952 Act empowers the Central Government to sell, lease or otherwise transfer, whether by auction, allotment or otherwise, any land or building belonging to the Government of Chandigarh on such terms and conditions as it may subject to any rules that may be C made under this Act, think fit to impose.

45Copy pinpoint45. Section 4 of the 1952 Act empowers the Central Government or the Chief Administrator to issue such directions for the purpose of proper planning or development of Chandigarh as may be considered necessary with regard to matters mentioned in Clauses (a) to (f) thereto. D Sub-section (2) of Section 4 thereof provides that every transferee is liable to comply with the said directions.

46Copy pinpoint46. Section 5 of the 1952 Act provides that no person can erect or occupy any building at Chandigarh in contravention of any building rules made under sub-section (2) thereof. Under sub-section (2) of Section 5 E thereof, the Central Government is empowered to make rules to regulate the erection of buildings for the purpose of matters mentioned in Clauses (a) to (i) thereto.

47Copy pinpoint47. Section 22 of the 1952 Act also enables the Central Government to make rules for carrying out the purposes of the said Act. F

48Copy pinpoint48. The 1960 Rules came to be notified on 8th March 1960. Rule 14 of the 1960 Rules reads thus: “14. Fragmentation - [Section 3 and 22 (2)(a)] - No fragmentation or amalgamation of any site or building shall be G permitted: Provided that amalgamation of two or more adjoining sites shall be permissible only in the case of commercial or industrial sites subject to the condition that the revised plans are approved by the competent authority, prior thereto. H

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A Provided further that fragmentation of sites shall be permitted only in case of the persons applying for conversion under the “Chandigarh Conversion of Land Use of Industrial Sites into Commercial Activity/Services in Industrial Area, Phase-I and II, Chandigarh Scheme, 2005, notified vide B No.28/8/51-UTFI(3)-2005/6658-6662, dated 19.09.2005.”

49Copy pinpoint49. Subsequently, the 2001 Rules came to be notified on 20 th December 2001. It will be relevant to refer to certain provisions of the said Rules, which read thus: “2. Definitions: C (a) “Apartment” means each sub-division of a building dully recognized by the Estate Officer, alongwith the proportionate share in common areas and common facilities, as well as any other property rights appurtenant thereto, shall constitute an Apartment.

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

3. Sub-division of Building: E (1) Every building subject to the provisions of the Capital of Punjab (Development and Regulation) Act, 1952 and the separate and independent units in accordance with these rules. Each such sub- division of a building shall be recognized as a distinct, identifiable property to which the owner lessee shall have title along with proportionate rights in the declared common areas and common F facilities. Each sub-division along with common areas, common facilities, rights of access easements and other ownership rights shall constitute a single, distinct identified, property which may be used transferred or disposed by the owner/lessees in accordance with the applicable law and rules. G (2) A building may be sub-divided through a declaration made by the owners/lessees to the Estate Officer in the prescribed form (Form- D). The Estate Officer shall, if he is satisfied with the completeness and correctness of information provided with the declaration and after, having the building inspected, if necessary, H recognize the sub- divisions of the building and the owners/lessees

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thereof, upon payment of such fee as may be notified by the A Administration from time to time. The recognition of each sub-division as an apartment by the Estate Officer under these rules shall be accorded by way of a fresh letter of allotment or a fresh conveyance deed, as the case may be, in suppression of the previous letter of allotment or conveyance deed. Such letter of deed shall recognize the owners/lessees of the apartment as the owners/lessees thereof, who shall be liable to comply with all the provisions of the Capital of Punjab (Development and Regulation) Act, 1952, and rules and regulations and orders framed thereunder. All the covenant and liabilities contained in the original allotment letter and in the conveyance deed pertaining to the building or site, shall be construed to be contained in the subsequent letter or deed, as the ease may be, even though no specific mention may have been made therein. (3) Each sub-division, after it has been recognized as an apartment by the Estate Officer, consequent upon the filing of prescribed declaration, shall be the sole and exclusive property of the declared owners/lessees. Such owners/lessees’s shall be fully and exclusively responsible and liable for complying with all provisions of the Capital of Punjab (Development and Regulation) Act, 1952, rules and orders framed thereunder, and covenants of the allotment letter and conveyance deed pertaining to the site or the building. E All these provisions of rules, orders and covenants shall apply, pari passu, to the apartment and to the owners/lessees thereof, as they did and would have, to the site or building and the owners/ lessees thereof. (4) Each apartment shall be entitled to separate utility connections such as water supply, sewerage and electricity, subject to building regulations. (5) Where sub-divisions of a building with more than one storey have been allotted, sold or leased by the Estate Officer, the Estate Officer may after giving notice to the owners/lessees of such sub- divisions, declare such 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 than 1400 square yards may be sub-divided into separate dwelling units H

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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 not constitute a separate sub- division. The basement shall form a part of the sub- divisions on the ground floor. In case more than one sub-division is allowed on the ground, each such sub-division may have a separate basement if building regulations so permit. Except in the case where the basement provides for facilities such as parking area at the end or other plant and equipment required for apartments in the building, the basement or portions therein may constitute a part of the sub-division on floors, other, ground floor. (3) The garage, servant quarters, outhouse, mali hut, store, open spaces etc. not forming part of the main residential building shall not form a separate sub- division(s) and shall form part of one or more of the apartments of the main building. D (4) A residential building on a plot of 1400 square yard or more may be sub-divided into two dwelling units on each floor provided that building regulations so permit.”

50Copy pinpoint50. However, the 2001 Rules came to be repealed on 1st October

2007. Immediately thereafter, the 2007 Rules came to be notified on 7th E November 2007. Rule 16 of the said Rules reads thus: “16. Fragmentation/Amalgamation. No fragmentation or amalgamation of any site or building shall be permitted. F Provided that amalgamation or two or more adjoining sites with the same ownership shall be permissible only in the case of commercial or industrial sites subject to the condition that the revised plans are approved by the competent authority, prior thereto. G Provided further that fragmentation of any site shall be allowed if such fragmentation is permitted under any scheme notified by the Administration.”

51Copy pinpoint51. It could thus be seen that Rule 16 of the 2007 Rules also does not permit fragmentation/amalgamation of any site or building. Insofar H

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as commercial or industrial sites are concerned, amalgamation is permitted A subject to the condition that the revised plans are approved by the competent authority, prior thereto. However, the second proviso also permits fragmentation of any site if such fragmentation is permitted under any scheme notified by the Administration. VI. FINDINGS OF THE HIGH COURT: B

52Copy pinpoint52. In the impugned judgment, what has been held by the High Court is that, though in view of Rule 16 of the 2007 Rules, no floor-wise sale of property is permissible and though, it does not permit a residential house to be converted into apartments, and that though no sale of a defined portion or part of the building is permissible, however, mere C construction of three floors on a private plot and utilization of the same as independent units would not amount to fragmentation. The High Court has held that fragmentation will take place only if there is a division of the site or division of the building with an element of exclusive ownership, i.e., partition by metes and bounds, which is prohibited by Rule 16 of the 2007 Rules. D

53Copy pinpoint53. The High Court has held that for holding that apartmentalization is being carried out, certain requisites have to be met. In view of the High Court, the following factors would be necessary for holding that it amounts to apartmentalization: E (i) “There has to be a sub-division of a building duly recognized by the Estate Officer along with proportionate share in common areas and common facilities; (ii) Each sub-division of a building to be a distinct, identifiable property to which the owner/lessee shall have title; F (iii) The recognition of each sub-division as an apartment by the Estate Officer would be accorded by way of a fresh letter of allotment or a fresh conveyance deed; and (iv) Pursuant to such recognition, such sub- division/apartment to be the sole and exclusive property of the declared owner/ G lessee.”

54Copy pinpoint54. The High Court held that, in the present case, the pre-requisites noticed hereinabove were missing. The High Court held that, by virtue of sale of share(s) by a co-owner and thereafter, the purchaser/vendee occupying a specific portion of the building on the basis of an internal H

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

55Copy pinpoint55. As such, the High Court though holds that what was permissible under the 2001 Rules, became impermissible after its repeal and notification of the 2007 Rules, it held that construction of three different floors in a building or a site and occupation of the same by three different persons would not amount to apartmentalization inasmuch as the same does not have recognition of the Estate Office.

56Copy pinpoint56. The 2001 Rules, in effect, permitted the apartments to be constructed on a site and permitted sub-division of a building as a distinct, identifiable property to which the owner/lessee would have title along with proportionate share in the declared common areas and common facilities. However, on account of the objections of the residents of Chandigarh, the 2001 Rules were repealed so as to prevent further apartmentalization. However, it is clear from the modus operandi as could be seen from the various documents placed on record that the builders/developers are, in fact, continuing to do the same thing which was permissible under the 2001 Rules and became impermissible after repeal thereof. The result of the judgment of the High Court is that, though the construction of apartments is prohibited, still the construction of a building and converting it into apartments would not be impermissible since the same would not be apartments within the meaning of the 2001 Rules. F VII. REPORT OF THE BOARD OF “INQUIRY AND HEARING”:

57Copy pinpoint57. It will further be relevant to note that Chandigarh Administration has notified the CMP-2031. It will be relevant to note that in the draft G CMP-2031, there was a provision for apartments. For considering the objections to the provisions made in the draft CMP-2031, the said Board, consisting of Senior Officers of the Chandigarh Administration, was constituted on 10th November 2013. The report of the said Board would reveal that Chandigarh was conceived as “Garden City” and in view of the socio-economic conditions and living habits of the people, vertical and high-rise buildings were ruled out. It would further reveal that Le

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Corbusier incorporated principles of light, space and greenery in the plan and used human body as the metaphor. It would also reveal that Chandigarh has been planned as a low-rise city and has been so developed that even after sixty years of its inception, its original concept has been retained to a large extent. The said Board, while submitting its report, has laid down certain guiding principles, which are thus: B “GUIDING PRINCIPLES The objections received by the Administration have been considered by the Board of Inquiry keeping in view the following guiding principles:

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

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

3. The northern sectors of Chandigarh (Corbusian in Chandigarh) should be preserved in their present form as far as possible. As far as re-development of some specific pockets is concerned, that can be done keeping proper perspective in mind. Any redevelopment in northern sectors (Phase-1) should only be done keeping the recommendations of the Expert Committee on Heritage in mind.

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

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

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

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A 7. The architecture of the city needs to be preserved and retained 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 transport system and augmenting parking spaces in the city. B

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

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

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

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

58Copy pinpoint58. It can thus clearly be seen that the said Board has considered that Chandigarh has a heritage value and it is important to preserve and maintain the integrity of the original concepts and planning postulates of G Sun, Space and Verdure. It also emphasized that the northern sectors of Chandigarh (Corbusian Chandigarh) should be preserved in their present form as far as possible. It also states that any redevelopment in the northern sectors (Phase-I) should only be done keeping the recommendations of the Heritage Committee in mind. It further provides that the same practice as followed while developing the New Delhi H

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

59Copy pinpoint59. Chapter III of the said Report elaborately deals with the objections opposing redensification in Phase-I Sectors and reintroduction of the 2001 Rules in Chandigarh. It will be relevant to refer to the recommendations of the said Board, which read thus: “CHAPTER-III: RECOMMENDATIONS OF THE D BOARD 3.1. RESIDENTIAL All objections pertaining to the residential areas in the sectoral grid were taken together. The representationists were E given oral hearing also. The main objection which has been raised is regarding redensification of Phase 1 sectors and reintroduction of Apartment Rules in Chandigarh. The proposal in this regard in the draft Master Plan is reproduced below: “The Chandigarh Apartment Rules to be reintroduced: Sub F division of residential plots of 1,000 sq. yards and above into two dwelling units on each floor shall be permitted. The residential buildings on plots of less than 1000 sq. yards will be permitted floor-wise sub-division into separate dwelling units with not more than one dwelling unit on each floor of the building. The above provisions are to be allowed G within the prevailing FAR and Ground Coverage norms.” P-78 of CMP- 2031 The representationists have vehemently objected to the proposals contained in the Draft Master Plan regarding redensification and introduction of Apartment Rules. This Board H

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A had detailed deliberations on this issue and the views are as following. Rapid growth of urban population is predicted by census and planning authorities: Chandigarh being the headquarters of Punjab and Haryana along with being a major gateway of Himachal B Pradesh is uniquely positioned for exponential growth as it is an extremely attractive destination for all segn1ents of the population. With rapidly growing population that lives in slums and unauthorised residential developments within the periphery area along with increasingly unaffordable housing for lower and middle class families, we feel that there is necessity to increase the housing stock for the success of the city. Perhaps with this objective in mind, the draft master plan makes a series of recommendations for increasing the housing stock of the city. One of these is the redensification of Phase I sectors and the introduction of the Apartment Rules. A more careful examination of the facts will reveal that there exist several reasons why the introduction of Apartment Rules is not an appropriate solution to the city’s requirements of affordable housing. To enumerate a few: i) Chandigarh city has a distinct heritage value from the point of view of city architecture and the basic concepts of sun, space and verdure in planning. An expert committee on heritage was constituted by GoI, whose recommendations have already been approved by the Government of India. The Expert Heritage Committee has recommended that the northern sectors of Chandigarh (Corbusian in Chandigarh) should be preserved in their present form as far as possible. Specifically it has been recommended that no further enhancement should be given in FAR. Therefore the concept of redensification in general will go against the heritage of the city. As for as re- development of some specific pockets is concerned, that can be done keeping proper perspective in mind. General redensification is not recommended. The expert committee has taken a serious note of the relaxations in FARs and building controls already given earlier and has recommended that they should be revoked.

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ii) An accurate audit of existing residential plots will reveal that many plots are inhabited by joint families, multi-generation families, have been internally divided and rented out and have legal disputes of ownership etc. Further there is a vast majority of residents who chose to live in Chandigarh due to the sub- urban character of the city and want to live in the present sort of system without the arrangement of group housing or apartment configurations. The present representationists typically belong to this class. All these properties will not be available for redevelopment into apartment configurations irrespective of what is proposed in the master plan. C iii) Increasing density and especially housing density is an extremely important task and challenge for the planners and administrators of the city. It is something which cannot be left to the vagaries of market to determine the impact of density on the city and its infrastructure. Individual D developments of apartments in plots will result in increase in density in the areas of the city that are most profitable to the developers rather than where these housing units are required. iv) The introduction of apartment rules will most essentially create apartments in the higher cost bracket of saleable units and is unlikely to create any low income or mid income housing. The demand in the city is for lower income and middle income housing rather than housing for the rich and affluent. A situation like this will predictably lead to proliferation of slums required to service the higher density of highest income group people. v) Location of the redevelopment will also be an adhoc situation depending on individual owners’ prerogative rather than a formulated or predictable distribution of apartment units in the city. City planners, therefore, will have no advance knowledge where and in what number the population density will increase. The planning for support and supply infrastructure, therefore, will also not be able to anticipate growth. This is, therefore, the least desirable and surely the most inefficient and expensive way to add infrastructure to the city. H

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A vi) There is a strong possibility that the introduction of the apartment rules will lead to a further increase in real estate prices. This will be in stark contradiction to the original aspect of creating more affordable housing, whereby the character of the city will be lost and gains will also not be significant. B vii) Chandigarh is today known throughout the world for being one of the best planned urban environment. In large part, it is due to the high proportion of open space, social facilities, civic amenities and infrastructure per living unit. The introduction of apartment rules, by itself does not have any C provision to add these essential services and facilities within the existing built up environment. It will only add residential density while ignoring other urban infrastructure thereby being detrimental to the city environment and will only lead to the long term decline of the city. D Keeping in mind these elements, it will be prudent to annul and negate any efforts to revive the Chandigarh Apartment Rules in its current form. This will not serve to create a large stock of available housing will not increase affordability. It will not serve MIG and LIG and will add to unplanned and unregulated growth of population density without any matching increase in social and physical infrastructure or amenities. The only beneficiary to this scheme will be a handful of developers which would be detrimental to the existing and future residents of the city. In conclusion, while there is an urgent requirement for increase of affordable housing stock in Chandigarh, the Apartment Rules is a poor and wholly inadequate instrument for this purpose. The Board, therefore, recommends that all references in the draft Master Plan in respect of the reintroduction of ‘Apartment Rules’ should be deleted and redensification of any government residential/institutional pocket in G Phase-I sectors should only be done with the prior approval of the Chandigarh Heritage Conservation Committee.”

60Copy pinpoint60. It is thus clear that though an attempt was made in the draft CMP-2031 to permit apartments on residential plots, the same was vehemently opposed. The Report considered the recommendations of H the Heritage Committee recommending that the northern sectors of

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Chandigarh should be preserved in their present form as far as possible. A It has been recommended that no further enhancement should be given in FAR. It also considered that the concept of redensification in general will go against the heritage of the city. It has further taken into consideration that the Heritage Committee has taken a serious note of the relaxations in FARs and building controls already given earlier and has recommended that no further relaxation be given and has also recommended that the relaxations already granted should be revoked.

61Copy pinpoint61. The said Board further considered that individual development of apartments in plots will result in increase in density in the areas of the city that are most profitable to the developers rather than where these housing units are required. It further considered that the introduction of the 2001 Rules will most essentially create apartments in the higher cost bracket of saleable units and is unlikely to create any low income or middle income housing. It considered that the demand in the city is for lower income and middle- income housing rather than housing for the rich and affluent. It further considered that a situation like this will predictably lead to proliferation of slums required to service the higher density of highest income group people. It further considered that the planning for support and supply of infrastructure would not be sufficient to meet the growth in population density on account of apartmentalization.

62Copy pinpoint62. The said Board also considered that the introduction of the 2001 Rules would lead to further increase in real estate prices. It E considered that this will be in stark contradiction to the original aspect of creating more affordable housing, whereby the character of the city will be lost, and the gains will also not be significant. It considered that Chandigarh is today known throughout the world for being one of the best planned urban environment, due to the high proportion of open space, social facilities, civic amenities and infrastructure per living unit. It considered that the introduction of the 2001 Rules by itself does not have any provision to add these essential services and facilities within the existing built-up environment. It stated that this will only add residential density while ignoring other urban infrastructure thereby being detrimental to the city environment, and will only lead to the long-term decline of the city.

63Copy pinpoint63. It could thus be seen that the Report clearly opposed reintroduction of the 2001 Rules. The Report has been duly accepted and all references regarding re-introduction of the 2001 Rules have been deleted in the Final CMP-2031, which was notified on 23rd April 2015. H

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A VIII. CHANDIGARH MASTER PLAN-2031:

64Copy pinpoint64. Clause 1.2 of the CMP-2031 would reveal that the original plan of Phase-I divided the city into a grid of 30 sectors with the Capitol Complex as well as the Civic Centre. Sector 17 was designed as the Central Business District. It provided that, the greenbelt at the centre ran north east to south east. Wide roads were planned in a systematic hierarchy providing structure to the city which has well planned facilities. Landscaped green avenues give it amenity value. It states that the First Phase which is considered as city’s Historic Core was designed for population of 1,50,000 in low rise plotted development. Phase-II from Sectors 31 to 47 for the remaining targeted 3,50,000 was with 4-storeyed apartments for government employees with an increase in the ratio of smaller plots/lesser open areas/nearly four times increase in density. Though there is a reference that the original concept itself included redensification of Phase-I, no details with regard to the same were available.

65Copy pinpoint65. A perusal of the CMP-2031 would reveal that while finalizing the CMP-2031, the Expert Committee took into consideration the preservation of original concept of the plan, maintaining the basic character of the town, preserving ecology and environment, heritage status of the city, promoting sustainable urban development etc. The Expert Committee also took into consideration the Report of the Heritage E Committee constituted by the Government of India under the chairmanship of His Excellency, the Administrator, UT Chandigarh and the approved letter of the Government of India dated 23rd December 2011.

66Copy pinpoint66. Clause 1.9 of the CMP-2031 provides the guiding principles for comprehensive CMP-2031. Clause (v) thereof states that F Chandigarh’s architecture shall preserve the vitality of all public and private buildings. Public open spaces shall be created as vibrant community spaces, and the left-out monuments envisaged by Le Corbusier shall be completed. Urban design shall be the guiding principle for improving the quality of inner and outer spaces. It also considers that one of the challenges for Chandigarh was the high degree of traffic G congestion.

67Copy pinpoint67. Clause 1.12 of the CMP-2031 would reveal that Chandigarh has a universally acclaimed rich ‘Heritage’ and ‘Green City’ character.

68Copy pinpoint68. Clause 4.5 of the CMP-2031 states the salient features of the Chandigarh Plan. It states that the function of Living occupies primary H

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place and has been organized into a cellular system of sectors based on the concept of a neighbourhood unit. Each sector, with the exception of some sectors, has a size of 800m × 1200m which was determined on the parameter of providing all amenities, i.e., shops, schools, health centres and places of recreation and worship within a 10-minute walking distance of the residents. The originally planned population of a sector varied between 3000 and 20,000 depending upon the size of plots, the topography of the area, and the urban design considerations. Each sector is introvert in character and permits only four vehicular entries into its interior to provide a tranquil and serene environment conducive to the enrichment of life. It also emphasized on family life and community living. It states that Chandigarh is planned as a green city with abundance of open spaces. It ensures that every dwelling has its adequate share of the three elements of Sun, Space and Verdure. The location of green belt was in the north- south direction to link all sectors with the Shivalik range of hills/mountains. The city was planned as a low-rise city and even after sixty years of its inception, it still retains the original concept to a large extent.

69Copy pinpoint69. Clause 5.3 of the CMP-2031 deals with density. It states that the population density during the last five decades has increased 9 fold, from 1051 to 9252 persons per sq. km. It states that Chandigarh shall continue to record higher densities with further population growth, which poses a challenge for maintaining the quality of life and providing basic and essential services even to its poorest residents as visioned by the city’s planners.

70Copy pinpoint70. Clause 5.3.2 of the CMP-2031 states that though Phase-I was planned to be low density development with 9000 acres of land housing 1,50,000 population, i.e., the density of 16 persons per acre, as per 2001 Census, it was 26 persons per acre. It states that by the year 2001, the density of Phase-I had already exceeded the designed density whereas that of Phase-II sectors was the same as was designed. It states that the city still has reasonable capacity to accommodate additional population. It further states that the density pattern is likely to undergo considerable change in the years to come with the city recording higher growth and development. As per the existing trends, the sectors falling in Phase-I shall continue to have lower density as compared to the sectors falling in Phase-II.

71Copy pinpoint71. Clause 5.7.4 of the CMP-2031 deals with the holding capacity of UT Chandigarh based on Master Plan recommendations. It H

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A specifically states that in order to maintain the basic character of the city as an administrative city, unnecessary increase in the population should be avoided. It states that with the coming up of new towns in the periphery of Punjab and Haryana, the excess population can be easily accommodated in those towns. It states that since the land stock in Chandigarh is limited, the uses related to governance and administration B should get priority in the allocation of land. It states that additional population will have to be diverted to the adjoining settlements by viewing the entire context of planning in the regional framework. However, the table in the said clause, dealing with private plots, shows the total units to be 22,788 and number of dwelling units as triple this number, at 68,364.

72Copy pinpoint72. Clause 6.3 of the CMP-2031 deals with private housing. It states that nearly 1/3rd of the private plots have an area of one kanal or above. It states that the first phase of the city had low density with residential plots ranging from 5 marlas to 8 kanals. The second Phase has much higher density with a switch mostly to three to four storey D flats with the largest plot size being 2 kanals.

73Copy pinpoint73. It will be pertinent to refer to the relevant parts of Clause 6.12 of the CMP-2031, which read thus: “6. HOUSING IN CHANDIGARH ……….. E 6.12 MASTER PLAN PROPOSALS ……….. Approval of the Chandigarh Heritage Conservation Committee Since Phase I sectors have been recommended for Heritage status, F the re-utilization of the identified housing /institutional pockets in the first phase shall be undertaken with the prior approval of the Chandigarh Heritage Conservation Committee. ……….. ADDITIONAL FAR AND GROUND COVERAGE TO G PRIVATE HOUSING The Chandigarh Administration vide notification dated 16/10/2008 has already permitted increased ground coverage and FAR for all sizes of private residential plots and introduced the concept of zoning in place of frame control. Under these regulations, all private plots can build upto 3 floors with each floor having potential of

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

74Copy pinpoint74. Clause 19.1 of the CMP-2031 considered the major recommendations, some of which include thus: “19 CHANDIGARHS HERITAGE ……… 19.1 THE MAJOR RECOMMENDATIONS INCLUDE C

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

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

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

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

5. Efforts should be directed to retain the essence of the original Plan of the city and as such the following is G recommended: – Chandigarh shall remain an Administrative City. – Chandigarh shall retain the essential planning postulates of Sun, Space, and Verdure. H

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

7. Heritage status to Sector 22, built as the first typical sector on the concept of the neighbourhood and Heritage status to C Sectors 7 and 8 as a tribute to the architect planner, Albert Mayer. No development must be allowed that may jeopardize their original concept.

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

9. The Committee hasalso made recommendations for a Master Plan for Chandigarh to ensure regulated development of the city’s Inter State Regional Plan and mechanism for its implementation, City Development Plan, Solar City, restoring the city’s strong imageability, Urban F Design, restoration of Architectural Control/Frame Control, Design, Advertisement Control Order.

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

11. Holistic planning of Capitol Complex to address immediate and future requirements, no scope for additional buildings within campus completion of the incomplete projects of the Capitol Complex, including the Museum of Knowledge, the Martyrs’ Memorial, revitalization of the plaza, campus lighting and illumination to highlight building edifices, addressing the security issues to enable comfortable

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visitor access to the Capitol Complex. The concern of development on the North of Chandigarh and the peripheral areas around the Capitol Complex.

12. Redensification of pockets of Government Housing The concept of Redensification has not been recommended in the Master Plan. Instead pockets identified by the Expert B Heritage Committee have been recommended for Reutilisation if required. (see Chapter on Housing).

13. Prior Concept Approval for identified private and Government buildings with the principal objective to maintain a harmonious urban form of Chandigarh and in keeping with C its original concept, Prior Concept Approval of new buildings and/or additions-and- alterations in old ones of identified private and government properties has been recommended. Following are the parameters for imposing the regulation of prior concept approval:- D • Since many private buildings fall along important arteries, namely, V3s and V4s, constituting major part of Chandigarh’s urban imageability, there is an urgent need to regulate individualistic/idiosyncratic use of weird forms, senseless geometry, garish colours and unaesthetic materials to preserve the original character of the city besides retaining sanity in architectural and urban designs. • The second criterion is the building’s architectural importance and the individual professional standing of the architects who constituted the foreign team of architects. • The third parameter is the location of the building, which is crucial because an ill- designed structure can become an eyesore whereas a sensitive design that respects its architectural legacy would be a G landmark asset in many ways. • Similarly, the development/additions and alteration of green belts should be done sensitively and in the same spirit as that of the original plant. H

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

14. Constitution of the Chandigarh Heritage Conservation Committee.

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

75Copy pinpoint75. Clause 19.11 of the CMP-2031 talks about the inclusion of Chandigarh in the UNESCO World Heritage List due to its outstanding universal value. It will be relevant to refer to the said recommendations, C which are thus: “19.11 INCLUSION OF CHANDIGARH IN THE UNESCO WORLD HERITAGE LIST DUE TO ITS OUTSTANDING UNIVERSAL VALUE RECOMMENDATION OF THE MASTER PLAN D COMMITTEE It has been perceived that Chandigarh’s inscription on World heritage list would bring many benefits as the city would join a select list of other modern movement cities/urban areas currently inscribed on the UNESCO’s heritage list. E A UNESCO heritage status shall bring about a boost to domestic and international tourism and related benefits to the city’s economy and build public awareness about the values of Chandigarh’s unique modern heritage. It will not only ensure protection of significant heritage buildings and areas from neglect, willful destruction, defacement, inappropriate alterations but will also provide for preparation of a comprehensive urban development plan which respects international heritage conservation criteria, is environmentally sustainable and also handles the future developmental needs of the city. The move was intended to train our officials for technologically appropriate repair and conservation of heritage buildings. CHANDIGARH SHOULD MAKE CONCERTED EFFORTS FOR WORLD HERITAGE STATUS IN CONSULTATION WITH THE MINISTRY OF HOME H

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AFFAIRS AND THE ARCHEOLOGICAL SURVEY OF A INDIA.”

76Copy pinpoint76. It will also be relevant refer to Clause 20.3 of the CMP-2031, which reads thus: “20.3AN EFFECTIVE ENVIRONMENTAL MANAGEMENT PLAN FOR CHANDIGARH AND FOR THE REGION B

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

77Copy pinpoint77. A perusal of various clauses in the CMP-2031 itself would reveal that the CMP-2031 emphasizes on maintaining monumental architecture and principles of town planning concept of Sun, Space, and Verdure, as enunciated by Le Corbusier. It also emphasizes that Corbusier’s Chandigarh, i.e., Phase-I of the city, which is the most representative of Le Corbusier’s thought, is truly worthy of its modern heritage value. In spite of observing this, it states that eventually three storeys with one dwelling unit per floor would be constructed on these plots. IX. CONSIDERATION OF CITED CASES:-

78Copy pinpoint78. The provisions of Rule 14 of the 1960 Rules as well as Rule F 16 of the 2007 Rules fell for consideration in some matters before this Court as well as before the High Court.

79Copy pinpoint79. The learned Single Judge of the High Court in the case of Chander Parkash Malhotra (supra) considered a dispute with regard to House No. 50, Sector 10-A, Chandigarh, which, on the death of the G original owner, was inherited by his sons and daughters. Some of the legal heirs, i.e., brothers and sisters of Chander Parkash filed a suit for partition of the property in which a preliminary decree came to be passed by the trial court on 30th September 1983. In appeal, the learned District Judge modified some of the findings recorded by the trial court. H

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A Thereafter, the proceedings for passing of the final decree were taken up by the trial court. A Local Commissioner was appointed to suggest the mode of partition, who submitted his report on 7th February 1989. The petitioner therein, Chander Prakash, raised his objections to the said report. The said objections were rejected by the trial court. The report of the Local Commissioner was to the effect that the property in dispute B cannot be partitioned by metes and bounds. The order of the trial court came to be challenged before the High Court by way of revision. In the revision, the validity of Rule 14 of the 1960 Rules was also challenged. The learned Single Judge, vide its judgment dated 22nd February 1991, held Rule 14 of the 1960 Rules being ultra vires to the Constitution of C India and also beyond the powers of the rule-making authority.

80Copy pinpoint80. The said judgment of the learned Single Judge came to be challenged by the Chandigarh Administration before this Court in the case of Chandigarh Administration (supra). It will be relevant to refer to Ground ‘G’ of the said appeal, which reads thus: D “G. That the Punjab Capital (Development and Regulation) Rules are framed under Section 22 of the Punjab (Development and Regulation) Act, 1952. The provisions of Section 22 are constitutional and do not suffer from any excessive delegation of legislative power. It specifically provides that the rules shall be E made for carrying out the purposes of the Act and further lays down the subject matter which the rules have to provide. The aims and objects with which the Act is enacted is to vest in the State Government the legal authority to regulate the sale of building sites and to frame building rules on the pattern of Municipal Bye-laws and for the planned development of the town. The entire F Act was purposefully directed to provide a reasonable social control of the urbanization visualized by the creation of an altogether new capital city for the State from scratch. The pre-eminent ideas underlying the same were:- (i) The need and incentive to create an altogether new places G where non existed. (ii) That too within the shortest possible time, and (iii) Further to ensure that it conformed to an ideal concept of a planned city as against the haphazard urbanization of the mushroom growth of slums which in the ultimate analysis H

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can even strangulate an existing town to extinction. It was to effectuate these purposes that the rules have provided a ban on fragmentation of sites and hence is a reasonable restriction on the right of property. Keeping in view the object and the preamble of the Act and the Rules framed thereunder, the same have to be viewed din a broader prospective. The fundamental right under Articles 14 and 19 of the Constitution are not absolute rights. The Constitution itself has imposed reasonable restrictions on its exercise in the interest of general public. Consequently, the restriction imposed by Rule 14 in furtherance of the object of the Act has to be judged as a reasonable restriction.”

81Copy pinpoint81. This Court, vide order dated 24th November 1992 passed in the case of Chandigarh Administration (supra), observed thus: “Leave granted. D In the present case, the respondents did not want the partitioning of the plot by metes and bounds. All that they wanted was the partitioning of the building and additions and alterations therein to make separate living units in the same building. Even this partition as well as addition was to be done by them with the approval of the Chandigarh Administration according to its building E bye-laws. Since no fragmentation of any site including the building was involved, there was no question of the violation of rule 14 of the Chandigarh Administration (Sale of Sites and Buildings) Rules, 1960. In the circumstances, it was not necessary to declare rule F 14 invalid as the High Court has done. To that extent, we set aside the order of the High Court. It is made clear that the respondents before partitioning the building or making additions and renovations in the same will take permission of the Chandigarh Administration according to law. G The appeal is disposed of accordingly. There shall be no order as to costs.”

82Copy pinpoint82. This Court specifically set aside that part of the judgment of the High Court which had held Rule 14 of the 1960 Rules to be H