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

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A unconstitutional. It could also be seen that, in the said case, the dispute was amongst the legal heirs of the original allottee.

83Copy pinpoint83. It appears that, frustrated by the litigation, the brothers and sisters of Chander Parkash sold the property to R.B. Chahal and Mrs. Sukhraj Chahal. The final decree proceedings reached up to the High B Court by way of second appeal in the case of Sh. Chander Parkash Malhotra v. Sh. R.B.S. Chahal13. An application was made by R.B. Chahal and Mrs. Sukhraj Chahal for their impleadment since they had purchased shares of co-owners. The learned Single Judge, while disposing of second appeal vide its judgment dated 1st December 1993, observed thus: C “6. As already noticed above, property cannot be partitioned according to bye-laws. The only alternative left is that the parties be permitted to bid among themselves and whosoever gives the highest bid, be allowed to purchase the property. In case this mode is not acceptable, the trial court should determine the market value D and given option to the appellant to purchase the share of the added respondents. In case he fails to do so within the time that the trial court may allow for the purpose, the added respondents be allowed to pay the price of the share of Chander Prakash-appellant.”

84Copy pinpoint84. In the case of Tilak Raj Bakshi (supra), the property situated in Chandigarh was owned by one Kripa Ram Bakshi. He had executed a registered will on 4th September 1974 in favour of the plaintiff, the first defendant and another son who was the 3rd defendant in the suit. The disputed house was transferred in favour of the aforesaid three persons by the Estate Officer. The plaintiff had filed a suit claiming that in view of an agreement between the three brothers namely himself, the first defendant and the younger brother, the third defendant, without the concurrence of the plaintiff, the first defendant could not have sold the suit scheduled property to the second defendant. The second defendant, who was not a part of the family, contended that the plaintiff did not have any preferential right and that he was a bona fide purchaser. The trial court found that the plaintiff was entitled to specific relief and declared the sale unit as null and void. The second defendant appealed against the said judgment of the trial court. The appeal of the second defendant was dismissed by the Appellate Court. The Appellate Court 13 H 1993 SCC OnLine P&H 1179

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 647 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

also allowed the cross-appeal filed by the plaintiff and directed the second A defendant to handover possession to the plaintiff. However, the High Court allowed the second appeal, and the civil suit filed by the plaintiff was dismissed. The matter thereafter reached this Court.

85Copy pinpoint85. This Court considered the arguments advanced on behalf of the plaintiff that the same would result in contravention of the 1960 B Rules made under the 1952 Act. This Court, further considering certain provisions of the 1952 Act, observed thus: “59. From a perusal of the aforesaid provisions, it becomes clear that the word “site” means any land which is transferred under Section 3 of the 1952 Act. When it comes to the terms of Section C 3, it contemplates power with the Central Government to transfer by auction, allotment or otherwise any land or building belonging to the Government in Chandigarh on such terms and conditions as may subject to any Rules that can be made under the Act, the Government thinks fit to impose. Thus, though it is open to the Central Government to transfer either land or building belonging to the Government in Chandigarh under Section 3 of the 1952 Act, the word “site” is confined to only the land which is transferred by the Central Government under Section 3. In fact, the word “building”, as defined in the Act, points to any construction or part of construction which is transferred under Section 3. It includes outhouse, stable, cattle shed and garage and also includes any building erected on any land transferred by the Central Government. The construction must be intended to be used for residential, commercial, industrial or any other purposes. A clear distinction is maintained between “site” and “building”. The Chandigarh (Sale of Sites and Buildings) Rules, 1960 came to be made. Section 22 F of the 1952 Act confers power upon the Central Government to make the rules for various purposes, which are mentioned in sub-section (2). It includes Sections 2(a), 2(d), 2(e) and 2(h) of the 1952 Act, which read as follows: “22. (2)(a) the terms and conditions on which any land or building G may be transferred by the Central Government under this Act; *** (d) the terms and conditions under which the transfer of any right in any site or building may be permitted; H

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A (e) erection of any building or the use of any site; *** (h) the conditions with regard to the buildings to be erected on sites transferred under this Act;””

86Copy pinpoint86. After reproducing Rule 16 of the 2007 Rules, this Court B observed thus: “61. It is on the strength of the provisions contained in Rule 14 of the 1960 Rules and Rule 16 of the 2007 Rules that the appellant would argue that the assignment of the share of the first defendant occasioned a breach of the law. The second defendant, on the other hand, would point out that there was no issue of fragmentation ever raised before the courts and the same was not decided in the courts.

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

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

64. The second defendant has produced the communication dated H 19-12-1997 which indicates the transfer of rights of site in Sector

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 649 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

19-A held by Vishnu Dutt Mehta (first defendant) is noted in favour of the second defendant subject to certain conditions. This is obviously before the 2007 Rules came into force.

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

87Copy pinpoint87. It could thus clearly be seen that, in the said case also, the property was bequeathed to plaintiff, the first defendant and another brother who was the third defendant. The second defendant had purchased the property from the first defendant and as such, he became a co-owner. The Court found that the assignment in favour of the second defendant was not vulnerable on the basis that it involved fragmentation. C However, it also noted the deposition of the plaintiff about partition of the house into three portions. It also noted that the 1/3rd share had been duly transferred and mutated in the name of the first respondent/second defendant by the Chandigarh Administration. It also noted that the transfer of rights of site in Sector 19A held by the first defendant was duly noted in favour of the second defendant subject to certain conditions on 19th December 1997. It noted that this was obviously before the 2007 Rules came into force.

88Copy pinpoint88. In another second appeal before the High Court in the case of Arvind Kapoor v. Kumud Kapoor and Another14, again there was a dispute between three siblings – a brother and two sisters. The dispute was with regard to House No. 2174, Sector 44-C, Chandigarh. The sisters had relied on the family settlement dated 13th June 2000. Arvind Kumar filed a suit seeking a declaration that the family settlement dated 13th June 2000 was obtained by fraud and as such, not binding on him. One of the sisters namely Sangeeta Chopra sought a declaration that she was the owner of the first floor of the said house and that she be given possession of the said property along with mesne profits/damages, as the brother Arvind Kapoor had illegally occupied the same. The other sister also supported the claim of Sangeeta Chopra. With regard to scope of Rule 14 of the 1960 Rules, the learned Single Judge vide its judgment dated 28th May 2019, observed thus: G “29. …. Yet, even if it were to be presumed that a purely legal question can be raised even at this stage, with this Court itself to decide on it as a substantial question of law, I would hold that as a matter of fact legal partition of the suit property has not been 14 Regular Second Appeal No. 1562 of 2012 dated 28.05.2019 H

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A sought by respondent Sangeeta Chopra once she withdrew her claim to ownership of the first floor thereof because of the statutory bar on such partition. Seeking possession of a particular floor of the property, in terms of the family settlement reached voluntarily between the parties, would not legally amount to partial partition, especially in the face of the fact that such partition in any case is B statutorily barred by the aforementioned rule, i.e., Rule 14 of the Chandigarh (Sales of Sites and Buildings) Rules, 1960. It is to be specifically noticed that the applicability of the said rule or the enactment under which the rules have been promulgated, is not denied by either party. C Further, as noticed above, there is no statutory bar on possession/occupation of individual floors, as long as joint ownership is not partitioned.”

89Copy pinpoint89. It thus appears that Sangeeta Chopra withdrew her claim to ownership of the first floor of the property because of the statutory bar D on such partition and restricted her claim for seeking possession of a particular floor of the property in terms of the family settlement. The High Court therefore held that the same would not legally amount to partial partition. It held that there is no statutory bar on possession/ occupation on individual floors, as long as joint ownership is not partitioned.

90Copy pinpoint90. It is thus clear that all the aforesaid cases arose out of the dispute between the legal heirs of the original allottee, who became co-owner of the property on the demise of original allottee. Whenever any share of co-owner was sold to an outsider, it was held that such a purchaser stepped into the shoes of one of the co-owners and as a F co-owner, he was entitled to the share of the property.

91Copy pinpoint91. Insofar as the case of Tilak Raj Bakshi (supra) is concerned, this Court has specifically observed that the rights of the first defendant were already transferred in favour of the second defendant prior to the 2007 Rules coming into force. G X. CONSIDERATION OF ISSUES:

92Copy pinpoint92. Permitting co-owners of a building and site to occupy a particular part of the building as per the family arrangement/settlement, is a matter totally different than permitting construction of a building, which would have three apartments, and then selling the same to three different persons.

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 651 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

93Copy pinpoint93. It is relevant to note that the 2001 Rules had introduced the concept of apartments in the city of Chandigarh. The said Rules permitted sub-division of a building duly recognized by the Estate Officer. Each sub-division of a building was recognized as a distinct, identifiable property to which the owner/lessee had title along with the proportionate right in the declared common areas and common facilities. The 2001 B Rules also permitted any residential building situated on a residential plot to be sub-divided into separate dwelling units, with not more than one dwelling unit on each floor.

94Copy pinpoint94. Since the citizens of Chandigarh opposed apartmentalization, the 2001 Rules came to be repealed on 1st October 2007. Immediately thereafter on 7th November 2007, the 2007 Rules came to be notified. C Rule 16 of the 2007 Rules specifically prohibited fragmentation of a site or building. Although fragmentation of any site could be allowed, if such fragmentation was permitted under any scheme notified by the Administration; admittedly, no such scheme is notified. As such, the effect is that though a building was permitted to be converted into apartments between the year 2001 and 2007, the same is not permitted after the year 2007.

95Copy pinpoint95. When the draft CMP-2031 was published, it was proposed to re-introduce the 2001 Rules, through which sub-division of residential plots of 1000 sq. yards and above into two dwelling units on each floor was to be permitted. The residential buildings on plots of less than 1000 sq. yards were to be permitted with floor-wise sub-division into separate dwelling units with not more than one dwelling unit on each floor of the building. The said Board was constituted to consider the objections/ suggestions to the draft CMP- 2031. The said Board considered various aspects such as recommendations of the Heritage Committee, which were accepted by the Government of India. It also considered recommendations of the Heritage Committee that the northern sectors of Chandigarh (Corbusian Chandigarh) should be preserved in their present form as far as possible, that no further enhancement should be given in FAR. The said Board considered that the concept of redensification in general would go against the heritage of the city.

96Copy pinpoint96. The said Board also considered that individual developments of apartments in plots will result in increase in density in the areas of the city that are most profitable to the developers, rather than where these housing units are actually required. It considered that introduction of the H

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A 2001 Rules will most essentially create apartments in the higher cost bracket of saleable units, and is unlikely to create any low income or mid income housing. It also considered that the demand in the city was for lower income and middle- income housing rather than housing for the rich and affluent. It also considered that if the re-introduction of the 2001 Rules is permitted, it will lead to proliferation of slums required to service the higher density of highest income group people.

97Copy pinpoint97. It is to be noted that one of the salient features of Le Corbusier’s design was that the population density in the northern sectors was to be low, which increases towards the southern sectors. Chandigarh city has been planned as a low-rise city and has been so developed that even after sixty years of its inception, it retains its original concept to a large extent.

98Copy pinpoint98. One of the guiding principles that weighed with the said Board was that Chandigarh had Heritage Value, and it was important to preserve and maintain the integrity of the original concepts and planning postulates of Sun, Space and Verdure. Another principle that weighed with the said Board was that any redevelopment in northern sectors (Phase-I) should only be done keeping the recommendations of the Heritage Committee in mind. Another guiding factor was that the same practices as followed while developing the New Delhi Municipal area (Lutyen’s Delhi) be followed in respect of the city of Chandigarh. The architecture of the city was to be preserved and retained in sync with Le Corbusier’s vision. The low-rise character of the city needs to be maintained. The recommendations of the said Board had been accepted while notifying the CMP-2031.

99Copy pinpoint99. It is important to note that the CMP-2031 itself states that F Phase-I Sectors have been recommended for Heritage status, and that the re-utilization of the identified housing/institutional pockets in the first phase has to be undertaken with the prior approval of the Heritage Committee. Having observed this at one place, it is difficult to apprehend as to how, though the CMP-2031 observed that by the year 2001 itself, the planned density of 16 per acre in Phase-I has been exceeded, it G estimated the holding capacity to be 34 per acre. It also records that as per 2001 Census, the density in Phase-I was 26 per acre.

100Copy pinpoint100. The CMP-2031 thereafter observes that under the regulations, all private plots can build up to three floors with each floor having the potential of having an independent unit. It further observes that there H

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 653 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

are approximately 23000 private plots of all categories within the sectoral A grid of the Chandigarh Master Plan. It assumes that each plot will eventually be built upto 3 storeys with one unit per floor, taking the number of dwelling units to 69000 approximately.

101Copy pinpoint101. It also recognized that the “Corbusian Chandigarh” title given to Phase-I of the city, which is the most representative of Le Corbusier’s B thought and philosophy, is truly worthy of recognition for its Modern Heritage Value. It further records that Sectors 1 to 30 are planned and detailed out by the original team in fulfillment of the CIAM principles of Living, Working, Care of Body and Spirit and Circulation.

102Copy pinpoint102. The CMP-2031 also recommends that concerted efforts C should be made for getting the world heritage status for Chandigarh in consultation with the Ministry of Home Affairs and the Archeological Survey of India. It also records that it has been perceived that Chandigarh’s inscription on the World heritage list would bring many benefits as the city would join a select list of other modern movement cities/urban areas currently inscribed on the UNESCO’s heritage list. D

103Copy pinpoint103. It will be pertinent to note that in the appeal filed before this Court in the case of Chandigarh Administration (supra), which was filed by the Chandigarh Administration challenging the judgment of the High Court holding Rule 14 of the 1960 Rules to be unconstitutional, it was specifically submitted that Rule 14 of the 1960 Rules was enacted in order to restrict the further growth of Chandigarh city. It had been submitted that the 1960 Rules provide a ban on fragmentation of sites and as such, was a reasonable restriction on the right of property. It is further to be noted that even in the reply filed on behalf of the Chandigarh Administration in the present proceedings before the High Court, it had been averred thus: “10. That the contents of paragraph 10 as stated are wrong and denied. The Chandigarh Administration does not permit a residential house to be converted into an apartment on account of the fact that “The Chandigarh Apartment Rules 2001” now stand repealed. However, the architectural controls and building bye-laws are of the highest standards, even otherwise the Estate Office maintains a strict vigil on the construction activities/ compliance of Rules and Building Bye-Laws in UT Chandigarh. Therefore, contrary to the claims of the petitioner, the character of Chandigarh is intact. H

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

104Copy pinpoint104. It can thus clearly be seen that Chandigarh Administration has reiterated its stand that it does not permit residential house to be converted into an apartment on account of the fact that the 2001 Rules now stand repealed. It however stated that there is no bar on alienation/ transfer of a share in a property by a true owner, as it is permissible as D per the provisions of the enactments and the recognized principles of civil law. It is stated that an owner of a freehold residential house is permitted to sell his share or a part of the shares in the said house. However, it is reiterated that no floor-wise sale of property is permissible under the 1952 Act.

105Copy pinpoint105. The Division Bench of the High Court, vide an interim order dated 27th July 2021, reproduced the stand of Chandigarh Administration. It also noticed that in the subsequent affidavit dated 20 th July 2021 of the Assistant Estate Officer, Chandigarh, it was specifically deposed that no sale of defined portion/plot of building is permissible, nor any such sale has been recognized by the Chandigarh Administration except those registered during the year 2001 to 2007 when the 2001 Rules were in vogue.

106Copy pinpoint106. Since the Division Bench was seized of the matter, it thought it was appropriate to scan through the advertisements that were published in news dailies in the recent past, having circulation in the city, so as to find out whether any floor-wise sale of dwelling units is advertised. It noticed that in the Sunday Tribune dated 25th July 2021 itself, as many as 24 advertisements were published inviting the purchasers/investors to purchase independent floors. In this order itself, the High Court has reproduced such advertisements. After reproducing such advertisements, the Division Bench observed thus:

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 655 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

“The afore-reproduced advertisement(s) lend credence to the assertion raised on behalf of the petitioners that under the garb of sale of certain percentage share of a residential unit independent floors are being sold. We find that the written statement filed on behalf of the official respondents/ Chandigarh Administration as also the subsequent affidavit of the Assistant Estate Officer is totally silent on such aspect. In our view, the Chandigarh Administration ought to have been alive to such situation and particularly when there were specific averments made in the present petition which was filed way back in the year 2016. Being in a state of denial on paper would not suffice. In the fitness of things, the Administration C should have carried out some kind of physical verification to ascertain as to whether such modus operandi had been resorted to after repeal of the Apartment Rules, 2001. Mr. Pankaj Jain, learned Senior Standing counsel on a specific query having been put, concedes that no such verification has been carried out. D We are constrained to observe that UT Administration has chosen to skirt a vital issue that has been raised in the instant petition. In view of the above we direct UT Administration to forthwith carry out an exercise whereby in the first instance the properties/buildings would be identified from the office of the Estate Officer where the record of the rights is maintained wherein sale of share(s) be it to the extent of 50%, 30% or 20% has been sold/ transferred to a person outside the family of the original owner/ shareholder. The second step would be to carry out a physical inspection of such identified buildings/dwelling units to find out as to whether the sale of share(s) has actually translated into the buyer occupying an independent floor in the otherwise composite dwelling unit or to find out as to whether independent floors are in the process of being constructed commensurate to the share(s) that has been purchased in such dwelling unit. It would be open for the official respondents to seek the cooperation/ assistance of the concerned police authorities/law enforcement agencies to facilitate the carrying out of the physical inspection of the premises in question. We further direct that this entire exercise be carried out under the supervision of the Chief Architect, UT Chandigarh. To ensure that such exercise does not become overly time consuming and the object is only towards a fact finding exercise H

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A we are of the view that it ought to be a sample exercise. The same be confined from the date of filing of the instant petition till 31.12.2019. Still further the exercise to confine only with regard to residential buildings.”

107Copy pinpoint107. It is thus clear that the Division Bench found that the written B statement filed on behalf of the Chandigarh Administration as also the subsequent affidavit of the Assistant Estate Officer, Chandigarh is totally silent on the aspect of advertisements of sale of independent floors. It observed that, Chandigarh Administration ought to have been alive to such situation, and particularly when there were specific averments made to that effect in the writ petition which was filed way back in the year

C 2016. The Division Bench observed that the Chandigarh Administration should have carried out some kind of physical verification to ascertain as to whether the aforementioned modus operandi had been resorted to after the repeal of the 2001 Rules. The High Court recorded the contention of the Senior Standing Counsel on behalf of the Chandigarh D Administration that no such verification has been carried out. The Division Bench thereafter issued a direction to the Chandigarh Administration to forthwith carry out an exercise in two steps. In the first step, the properties/buildings were to be identified from the office of the Estate Officer where the record of the rights is maintained wherein share(s) be it to the extent of 50%, 30% or 20% has been sold/transferred to a person outside the family of the original owner/shareholder. The second step was to carry out physical inspection of such identified buildings/dwelling units to find out as to whether the sale of share(s) has actually translated into the buyer occupying an independent floor in the otherwise composite dwelling unit or to find out as to whether independent floors are in the process of being constructed, commensurate to the share(s) that has been purchased in such dwelling unit.

108Copy pinpoint108. It is thus clear that when the interim order was passed on 27th July 2021, the Division Bench was conscious of the fact that even according to the Chandigarh Administration, it was not permissible to construct apartments on the sites allotted and sell it to different persons. It is informed that, in pursuance to the directions of the High Court dated 27th July 2021, a survey was conducted and it was found that 891 sites were converted into three apartments each.

109Copy pinpoint109. From the material placed on record, it appears that the modus operandi that is devised by the developers is that the allottee of the H

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 657 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

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.

110Copy pinpoint110. It will be relevant to refer to the recitals in one of such settlement deeds executed on 2nd May 2013, which read thus: “Whereas as per the present rules of the Estate Office it could not been mentioned in the Sale Deed that the possession of which floor/portion/area has been given to the purchaser so this MOU has been executed between the parties to avoid any future misunderstanding/litigation among all the co- owners of the said house in respect of their respective possession in the said house in lieu of their respective shares in the said house so this MOU has been executed between the parties and all the parties have agreed with each other on the following terms and conditions.” E

111Copy pinpoint111. It is thus clear that, the parties who entered into such an MoU, were conscious of the fact that as per the Rules of the Estate Office, it could not be mentioned in the sale deed that the possession of particular floor is given to the purchaser. It asserts that the MoU has been executed between the parties to avoid any future misunderstanding/ F litigation amongst all the co-owners of the said house in respect of their respective possession in the said house in lieu of their respective shares in the said house.

112Copy pinpoint112. It will also be relevant to refer to Clause 12 of the said Settlement Deed dated 2nd May 2013, which reads thus: G “12. That from now on all the parties shall hereafter peacefully hold, use and enjoy their respective portions as their own property without any hindrance, interruption, claim or demand whatsoever from each other. But as the parties are owners of different portions in one common house, they will be dependent upon each other in H

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A many ways in their day to day lives. So they should try to co-exist amicably with each other as brothers and sisters and family members, always keeping in mind the necessities, comforts, rights and feelings of each other and try to sort out any differences, discomforts and dissatisfactions in a peaceful and dignified manner.” B

113Copy pinpoint113. It is thus clear that the MoU clearly states that all the parties, after entering into such a document, would peacefully hold, use and enjoy their respective portions as their own property without any hindrance, interruption, claim or demand whatsoever from each other. No doubt, it states that since the parties are owners of different portions C and would be dependent upon each other in many ways, they should try to co-exist amicably with each other as brothers and sisters and family members.

114Copy pinpoint114. According to the High Court, the said does not amount to fragmentation, which is prohibited by Rule 16 of the 2007 Rules. The D High Court has held that fragmentation will take place only where there is a division of the plot or division of the building with an element of exclusive ownership that is by partition by metes and bounds.

115Copy pinpoint115. It will be relevant to refer to the meaning of “fragment” and “fragmentation”, as per Webster’s Encyclopedic Unabridged Dictionary E of the English Language, which reads thus: “Frag.ment (frag’ment), n. – 1. a part broken off or detached: scattered fragments of rock. 2. a portion that is unfinished or incomplete: Fragments of his latest novel were penciled in odd places. 3. an odd piece, bit, or scrap. – v.i. 4. to disintegrate; collapse or break into fragments: The chair fragmented under his weight. – v.t. 5. to break (something) into pieces or fragments; cause to disintegrate: The vase was fragmented in shipment. Outside influences soon fragmented the culture. 6. to divide into fragments; disunify. [ME < L fragment (um) a broken piece, remnant, equiv. to frag – (s. of frangere to break) + - mentum – MENT] Frag.men.ta.tion (frag’men’ta’shen), n. – 1. act or process of fragmenting; state of being fragmented. 2. the disintegration, collapse, or breakdown of norms of thought, behavior, or social relationship.3. the pieces of an exploded fragmentation bomb or grenade. [FRAGMENT + - ATION]” H

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 659 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

116Copy pinpoint116. A perusal of the aforesaid clauses from the settlement deeds, which have been reproduced hereinabove, it is clear that the understanding between the parties is that they are independent owners of different floors. It would also reveal that as per their understanding also, the present Rules of the Estate Office, would not permit to mention in the sale deed that the possession of which floor/portion/area has been given the purchaser. In any case, what is to be found is the real intention behind the transaction. When the transaction clearly shows that it is being entered into for the purpose of constructing three different apartments on each floor and also mentions that the same is not permissible under the existing rules, the intention of the parties is to construct three different units which are disintegrated. This is nothing else but fragmentation. In our view, it is an attempt to by-pass the statutory prohibition.

117Copy pinpoint117. It will also be relevant to refer to an undertaking which the owner is required to furnish in an application for obtaining the occupation certificate: D “UNDERTAKING OF OWNER ……….

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

118Copy pinpoint118. The application which is to be made in the said format is still in vogue. In the teeth of such an undertaking and the specific stand of Chandigarh Administration that it does not permit construction of apartments, it is difficult to appreciate as to how building plans have been sanctioned which ex-facie show that they are nothing else but apartments.

119Copy pinpoint119. It is thus clear that the modus operandi of the developers is, in effect, resulting into apartmentalization of the buildings. What is not permissible in law after the repeal of 2001 Rules on 1st October 2007, and enactment of Rule 16 of the 2007 Rules, is indirectly being permitted under the guise of sale of shares and subsequent MoUs. It is also to be noted that though an attempt was made in the draft CMP- 2031 to reintroduce the provision for apartments, after considering the objections, it was decided to delete the same from the final CMP-2031. As already H

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A stated hereinabove, on account of such transactions, number of sites have been purchased through the aforesaid modus operandi; buildings were demolished and three apartments were constructed thereon.

120Copy pinpoint120. The High Court in the impugned judgment though holds that it is not permissible to construct apartments in view of repeal of the 2001 B Rules, goes on to hold that the said would not amount to apartmentalization, inasmuch as there is no sub-division of a building duly recognized by the Estate Officer along with the proportionate share in common areas and common facilities. It holds that by virtue of sale of share(s) by a co-owner and thereafter, the purchaser/vendee occupying a specific portion of the building on the basis of an internal arrangement/ C understanding, “sub-division of building” as contemplated under the 2001 Rules does not take place. In our considered view, the said reasoning is not sustainable in the teeth of Rule 16 of the 2007 Rules.

121Copy pinpoint121. If the reasoning which is adopted by the High Court is to be accepted, then it will lead to a situation wherein, as aforementioned, what is not directly permissible in law, is being indirectly permitted. Therefore, in our view, the reasoning of the High Court would not be tenable in law.

122Copy pinpoint122. As stated hereinabove, the CMP-2031 itself states that since Phase-I Sectors have been recommended for heritage status, the re-utilization of the identified housing/institutional pockets in the first Phase has to be undertaken only with the prior approval of the Heritage Committee. Even in the report of the said Board, it has been specifically stated that the Heritage Committee has recommended that northern sectors of Chandigarh (Corbusian Chandigarh) should be preserved in their present form as far as possible. It is also stated that general redensification is not recommended. It has considered that the Heritage Committee has taken a serious note of the relaxations in FAR and building controls already given earlier and has recommended that no further relaxation be given and has also recommended that the relaxations already granted should be revoked.

123Copy pinpoint123. This Court in the case of Bangalore Medical Trust v. B.S. Muddappa and Others15, while considering the provisions of Bangalore Development Authority Act, 1976, has considered an issue with regard to deviation from duly sanctioned scheme thereby sacrificing the public interest in the preservation and protection of environment. It will be 15 H (1991) 4 SCC 54

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apposite to reproduce certain observations made in the aforesaid judgment, which read thus: “18. ….…Any unauthorised deviation from the duly sanctioned scheme by sacrificing the public interest in the preservation and protection of the environment by means of open space for parks and play grounds and ‘ventilation’ will be contrary to the legislative intent, and an abuse of the statutory power vested in the authorities…”

24. Protection of the environment, open spaces for recreation and fresh air, play grounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a C development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The public interest in the reservation and preservation of open spaces for parks and play grounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. D Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens. E

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

124Copy pinpoint124. In the case of Shanti Sports Club and Another v. Union of F India and Others16, this Court enunciated the difference between developed and developing countries vis-à- vis planned development and observed that the object of planned development had been achieved by developed countries by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and G rationalisation of laws and concluded that developed countries had laid great emphasis on the planned development of cities.

125Copy pinpoint125. It was further observed that the people of developed countries had greatly contributed to the concept of planned development of cities 16 (2009) 15 SCC 705 H

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A by strictly adhering to the planning laws, the Master Plan etc. and that they respect the laws enacted by the legislature for regulating planned development of the cities and seldom is there a complaint of violation of Master Plan etc. in the construction of buildings, residential, institutional or commercial. On the other hand, the scenario in developing countries like ours was substantially different. Though, the competent legislatures B have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations and bye-laws with impunity. This Court observed as under: C “74. ………….In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn a blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/ F amenities like water, electricity, sewerage etc. apart from creating chaos on the roads………

75. Unfortunately, despite repeated judgments by this Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the State apparatus. As and when the courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance of laws relating to planned

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development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.” [Emphasis supplied]

126Copy pinpoint126. A strong reliance has been placed on behalf of the respondents on the provisions of the 2017 Rules. It has been submitted that the 2017 Rules clearly permit construction of three storeys. It is submitted that D ‘storey’ has been defined to mean any horizontal division of a building so constructed as to be capable of use as a living apartment, although such horizontal division may not extend over the whole depth or width of the building but shall not include mezzanine floor. It is therefore submitted that when the 2017 Rules itself 1permit construction of three storeys having independent kitchens etc. and the 2017 Rules having not been challenged, it is not permissible for the appellants to argue that three persons cannot be permitted to occupy three different dwelling units on each storey.

127Copy pinpoint127. We are unable to accept the said argument. It is a different matter that three co-sharers decide to construct a building for residential house and construct three storeys for occupation by each of the co-sharers. However, allowing such modus operandi to continue, which, in effect, nullifies the effect of repeal of the 2001 Rules, enactment of the 2007 Rules, and recalling an attempt to reintroduce apartmentalization in the draft CMP-2031, would be permitting to do something indirectly which is not permissible in law.

128Copy pinpoint128. Another aspect that needs to be taken into consideration is that the CMP-2031 as well as the report of the said Board emphasizes that in order to maintain the “Corbusian Chandigarh” status of Phase-I H

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A 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, in our view, cannot be done without the same being approved by the Heritage Committee and the Central Government. B

129Copy pinpoint129. It further needs to be noted that one of the guiding principles that has been taken into consideration by the said Board is that the same practices which were followed while developing the New Delhi Municipal area (Lutyen’s Delhi) be followed in respect of the city of Chandigarh. Insofar as the practices that were followed while developing New Delhi C Municipal area (Lutyen’s Delhi), a Bench consisting of three learned Judges of this Court had an occasion to consider the same in the case of New Delhi Municipal Council and Others v. Tanvi Trading and Credit Private Limited and Others17, wherein this Court observed thus: “6. On 1-8-1990, the Master Plan, 2001 was approved wherein it D was specifically mentioned that the bungalow character of LBZ needs to be preserved. The Master Plan even without specifically mentioning LBZ guidelines visualised similar treatment of LBZ so as to maintain the low density area without in any manner adversely affecting the green cover in the area. On 27-7-1993 E objections were invited to the Zonal Development Plan whereas on 25-5-1994 the New Delhi Municipal Council Act, 1994 came into force.”

130Copy pinpoint130. In the said case, this Court was considering an appeal challenging the judgment of the Division Bench of the High Court vide which it was held that the order rejecting building plans submitted by the respondents for the construction of a 15 storeyed building in the Lutyens Bungalow Zone (LBZ) was illegal. Vide the said judgment of the High Court, the New Delhi Municipal Council was directed to return the building plans submitted by the respondents with an endorsement “sanctioned” within the time specified in the order. This Court, however, vide judgment dated 28th August 2008, set aside the judgment of the High Court and allowed the appeal in the following terms: “47. On the facts and in the circumstances of the case, this Court is of the opinion that the respondents would be entitled to construct 17 H (2008) 8 SCC 765

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

131Copy pinpoint131. Though, it may not be strictly possible to adhere to the practices that are followed in LBZ, when the report of the said Board as well as the CMP-2031 emphasizes on the approval of the Heritage Committee before permitting any redensification in the Le Corbusier zone, the Chandigarh Administration could not have made the provisions in the CMP-2031 permitting redensification without the approval of the Heritage Committee.

132Copy pinpoint132. A perusal of the CMP-2031 itself would reveal that the Expert Committee observes that Chandigarh’s inscription on UNESCO’s World Heritage list would bring many benefits as the city would join a select list of other modern cities/urban areas currently inscribed on it. In our view, in this background, providing something which would adversely affect the heritage status of the Le Corbusier Zone, without the approval of the Heritage Committee, would not be permissible.

133Copy pinpoint133. The material placed on record would clearly reveal that E Phase-I was designed for a low-rise plotted development with a greenbelt at the Centre running north east to south east. Wide roads planned in a systematic hierarchy provide structure to the city which has well planned facilities. Landscaped green avenues give it amenity value. In our view, permitting anything which would have an adverse effect on the heritage status of the city without the approval of the Heritage Committee itself would be contrary to the CMP-2031 and the report of the said Board.

134Copy pinpoint134. Insofar as the contention raised on behalf of the respondents that the restriction on transfer of property would not be permissible in view of the provisions of the TP Act is concerned, it is to be noted that in the case of Chander Parkash Malhotra (supra), the High Court had held Rule 14 of the 1960 Rules to be ultra vires to the Constitution of India. However, in an appeal filed by the Chandigarh Administration, this Court set aside the said order of the High Court. Apart from that, it is to be noted that Rule 14 of the 1960 Rules and Rule 16 of the 2007 H

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A Rules have been enacted under the 1952 Act. It is a settled law that in case of a conflict between a special provision and a general provision, the special provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provision. Reliance in this respect is to be made to the judgment of this Court in the case of J.K. Cotton Spinning & Weaving Mills Co., Ltd. B v. The State of Uttar Pradesh and Others18, which has been consistently followed by this Court.

135Copy pinpoint135. We may also gainfully refer to the observations of a Full Bench of the Punjab & Haryana High Court in the case of Dheera Singh v. U.T. Chandigarh Admn. and Others19, wherein the Full Bench C has held that “The Parliament, in no uncertain terms, has expressed through a non obstante clause contained in Section 424-A of the Punjab Municipal Corporation (Extension to Chandigarh) Act, 1994 that the provisions of the 1952 Act shall operate and have an overriding effect.” We respectfully agree with the view taken by the Full Bench.

136Copy pinpoint136. Another aspect that needs to be taken into consideration is that, as observed in the interim order of the High Court dated 27 th July 2021, the Chandigarh Administration has not been alive to the situation. Taking into consideration the importance of the matter, we had directed the Estate Officer to remain present during the proceedings of the hearing. E Accordingly, Shri Vinay Pratap Singh, Estate Officer, was personally present. The Estate Officer also agreed that though CMP-2031 is opposed to apartmentalization and redensification, under the 2017 Rules there was no restriction to construct three independent units by co-owners. One aspect that needs to be taken into consideration is that though under the 2017 Rules, one dwelling unit is being permitted to be F converted into three dwelling units, there is no adequate provision for parking. The Estate Officer also agreed that there was a huge problem of parking in the city of Chandigarh. This aspect had also not been taken into consideration while notifying the 2017 Rules. It is difficult to appreciate as to how on one hand, the Chandigarh Administration is taking a stand that apartmentalization is not permissible and on the other hand, turning G Nelson’s eye when plans, which ex-facie amount to apartmentalization, are being submitted and sanctioned under its very nose.

137Copy pinpoint137. It is further pertinent to note that in the CMP-2031 itself, the Expert Committee has recommended thus: 18

[1961] 3 SCR 185

H 19 2012 SCC OnLine P&H 21473

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

138Copy pinpoint138. It has been recommended that to prevent undue change or damage to the historic and cultural value of Le Corbusier’s urbanism, interim orders must not be issued to make any modifications in the heritage areas approved by the Government of India, the circulation structure, the generic sector, architectural control and the plantations. D

139Copy pinpoint139. Judicial notice can be taken of the creation of the city of Brasilia as the capital of Brazil. From the website of the “UNESCO World Heritage Convention”, it could be seen that the city was planned by urban planner Lucio Costa and architect Oscar Niemeyer. It will be interesting to note that while planning the said city, urban living as promoted by Le Corbusier and his treatise titled “How to Conceive Urbanism” E served as an inspiration. It is worthwhile to note that in spite of various changes, Lucio Costa’s Pilot Project (Plano Piloto) still remains preserved. It will be apposite to refer to the following extract from the said website: “The urban framework of Brasilia includes all of the elements required to demonstrate outstanding universal value. A city that is at once urbs and civitas, Brasilia has preserved its original guiding principles intact, as reflected in the protection of its urban scales, legally protected by local and federal organisms of government of the country. The city finds itself today in the midst of a process of consolidation, in accordance with its dual function as city and capital, through the continuing implementation of new urban services and structures. The World Heritage property is vulnerable to urban development pressure including increased traffic and public transport requirements. The city’s various sectors, as laid out in the initial plan, are now in the process of being supplemented and, indeed, concluded, in line with the original urban principles. These H

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A changes in no way jeopardize the singular and outstanding value of Lucio Costa’s Pilot Project (Plano Piloto), which remains wholly preserved, both physically and symbolically. It is possible based on the still undeveloped areas around Brasilia, the surrounding green spaces, and the location’s topography, to clearly distinguish the city’s limits from the territorial expanse in which it was introduced, singular attributes that enable analysis of the site without losing any of the basic information critical to transmitting its continued Outstanding Universal Value.”

140Copy pinpoint140. It will also be relevant to extract the following passage from the said website, which would show the steps taken for protection of the urban framework of Brasilia: “Protection of the Urban Framework of Brasilia is governed by a series of legal instruments intended to ensure its preservation on three operational levels: local, federal, and global. At the local level, a set normative instruments consisting of specific laws aimed at protecting the heritage site as well as highly complex body of technical and operational urban legislation based on the Federal District’s Urban and Land Settlement Policy have been put in place.”

141Copy pinpoint141. The said website would also show that similar steps have been taken for protecting the White City of Tel-Aviv and the city of Le E Havre, rebuilt by Auguste Perret.

142Copy pinpoint142. We find that similar steps need to be taken by the Chandigarh Administration as well as the Government of India for protecting the heritage status of Le Corbusier’s Chandigarh.

143Copy pinpoint143. In this respect, we may also refer to the Directive Principles F contained in Articles 49 and 51A(f) and (g) of the Constitution of India, which read thus: “49. Protection of monuments and places and objects of national importance. – It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of G national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be. 51A. Fundamental duties. – It shall be the duty of every citizen of India – …….. H (f) to value and preserve the rich heritage of our composite culture;

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

144Copy pinpoint144. A conjoint reading of the aforesaid provisions would reveal that a responsibility is cast upon the State as well as the citizens to protect and conserve the heritage. Undisputedly, Phase-I of Chandigarh, B i.e., Corbusian Chandigarh, even according to the respondent-authorities, possesses a heritage status. The CMP-2031 itself emphasizes that Chandigarh should be included in the UNESCO’s World Heritage List due to its outstanding universal value. As already discussed hereinabove, the fragmentation/apartmentalization of residential units in Phase-I of Chandigarh is destructive of the vision of Le Corbusier. It is also opposed C to the concept of protecting and preserving the heritage status of Corbusian Chandigarh. As such, it is necessary that the respondent-authorities must take every possible step for preserving the heritage status of Corbusian Chandigarh. XI. ENVIRONMENTAL ISSUES: D

145Copy pinpoint145. One another important aspect that needs to be taken into consideration is the adverse impact on environment on account of haphazard urbanization. It will be relevant to refer to Clause 20.3 of the CMP-2031 which we have already reproduced hereinabove. It has been recommended that an Effective Environmental Management Plan be devised for the region including Chandigarh, which includes environmental E strategy, monitoring regulation, institutional capacity building and economic incentives. It is observed that the proposal needs a legal framework and a monitoring committee to examine the regional level proposals/big developments by the constitution of an Inter State high powered Regional Environmental Management Board, as per the proposal of the Ministry of Environment and Forests, Government of India. F

146Copy pinpoint146. The United Nations Environment Programme (UNEP) notes in its publication titled “Integrating the Environment in Urban Planning and Management – Key Principles and Approaches for Cities in the 21st Century” that more than half of the world’s population is now living in urban areas. It further noted that by the year 2050, more than G half of Africa and Asia’s population will live in towns and cities. It recognized that City Development Strategies (CDSs) have shown how to integrate environmental concerns in long-term city visioning exercises. It states that environmental mainstreaming can help to incorporate relevant environmental concerns into the decisions of institutions, while emerging ideas about the green urban economy show how density can H

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A generate environmental and social opportunities. It states that the strategies need to be underpinned with governance structures that facilitate integration of environmental concerns in the planning process.

147Copy pinpoint147. The said publication defines EIA to be an analytical process or procedure that systematically examines the possible environmental consequences of the implementation of a given activity (project). It is B aimed to ensure that the environmental implications of decisions related to a given activity are taken into account before the decisions are made.

148Copy pinpoint148. Judicial notice is also taken of the cover story published in the weekly, “India Today”, dated 24th October 2022, titled as “Bengaluru – How to Ruin India’s Best City” by Raj Chengappa with Ajay C Sukumaran. The said article depicts the sorry state of affairs as to how the city of Bengaluru, once considered to be one of India’s best cities, a ‘Garden city’ has been ruined on account of haphazard urban development. It takes note of as to how on account of one major spell of rain in the September of 2022, the city bore the brunt of nature’s fury. Various areas of the city were inundated with heavy rains. The loss the D flood caused to the Outer Ring road tech corridor alone was estimated to be over Rs.225 crore.

149Copy pinpoint149. The article notes that, while on one hand, on account of heavy rains, many of the houses were submerged in water, on the other hand, the city faced a huge shortage of drinking water.

150Copy pinpoint150. The article further notes that rapid expansion of the city with no appropriate thought given towards transportation and ease of mobility has led to nightmarish traffic jams on its arterial roads. It notes that, almost overnight, Bengaluru’s municipal jurisdiction grew from 200 sq. km. to 800 sq. km. It observes that the only one to benefit was the politician-businessman-builder nexus, which has thrived. It further noted that though posh colonies mushroomed in new areas, the infrastructure lagged, as roads remained narrow, the drainage poor, and no adequate provision for garbage disposal too.

151Copy pinpoint151. The article notes that the primary canals known locally as rajakaluves were once natural rain-fed streams across which farmers built small bunds over time, to arrest the flow of water and create lakes. It further notes that these interlinked man-made lakes worked as a storm-water drain network. However, in order to meet the demand for space for construction and roads, the administrators allowed the lakes to be breached regularly. The lakes, which once numbered a thousand-odd, are now reduced to a paltry number. Worse, the rajakaluves that channelized the storm water had buildings built over them.

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152Copy pinpoint152. The warning flagged by the city of Bengaluru needs to be given due attention by the legislature, executive and the policy makers. It is high time that before permitting urban development, EIA of such development needs to be done. XII. CONCLUSION:

153Copy pinpoint153. Taking overall view of the matter, we are of the considered view 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 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. In our view, this would amount to permitting something indirectly which is not permitted directly. The authorities of the Chandigarh D 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. It is further to be E noted that though the Chandigarh Administration is permitting one dwelling unit to be converted into three apartments, its adverse effect on traffic has not been addressed. With the increase in number of dwelling units, a corresponding increase in the vehicles is bound to be there. However, without considering the said aspect, one dwelling unit is permitted to be converted into three apartments. F

154Copy pinpoint154. We find that the High Court has failed to take into consideration all these aspects. No doubt that the High Court has issued certain directions so as to protect the interest of home buyers. It has also observed that “Chandigarh Administration chooses to stay smug, taking a stand on paper that floor-wise sale of residential building is not permissible while residential floors are being advertised for sale right G under its nose”. It therefore directed the Chandigarh Administration to issue a notice to be published at periodic intervals in the newspapers for the purposes of sounding a word of caution and educating such home buyers who have already purchased a share in a residential building/site as also the prospective home buyers. The High Court also directed the H

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

155Copy pinpoint155. In our view, the High Court ought not to have stopped at that. Having noted the stand of the Chandigarh Administration that the construction and floor-wise sale of residential building was not permissible in view of Rule 16 of the 2007 Rules, the High Court ought to have held that the statutory rules framed under 1952 Act expressly prohibits fragmentation/division/bifurcation/apartmentalization of a residential unit in Phase-I of Chandigarh. The legislative intent as found in Rule 14 of the 1960 Rules has been clearly reiterated in Rule 16 of the 2007 Rules, D which has been enacted under Section 5 read with Section 22 of the 1952 Act. We are of the considered view that the High Court has erred in not considering the same.

156Copy pinpoint156. Shri Patwalia fairly conceded that the said exercise has acted as a deterrent and number of such transactions amounting to apartmentalization have substantially reduced. E

157Copy pinpoint157. No doubt that the High Court has rightly issued the directions to safeguard the interest of the home buyers. However, we find that the High Court itself having found that after the repeal of the 2001 Rules and enactment of the 2007 Rules, apartmentalization was not permissible, it ought not to have permitted a modus operandi which indirectly permits F to do what was not permissible in law. In any case, taking into consideration the heritage status of Phase-I, the High Court ought to have considered the matter in correct perspective.

158Copy pinpoint158. We may gainfully refer to an article by Jonathan Glancey dated 11th December 2015 titled “Is this the perfect city?”, published by the BBC, which reads thus: G “Of all the world’s ideal cities, Chandigarh has done remarkably well, offering striking monumental architecture, a grid of self-contained neighbourhoods, more trees than perhaps any Indian city and a way of life that juggles tradition with modernity. While history tells us ideal cities are mostly best left on paper, Chandigarh H – perhaps one of the least likely appears to have succeeded against

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the grain.” A

159Copy pinpoint159. As could be seen from the said article, Chandigarh has done remarkably well, offering striking monumental architecture, a grid of self-contained neighbourhoods, more trees than perhaps any Indian city and a way of life that juggles tradition with modernity.

160Copy pinpoint160. At the cost of repetition, it must be noted that the CMP-2031 B 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, in our view, will injure the ‘Lungs’ of the city as conceptualized by Le Corbusier. In this regard, the observations of C this Court in the case of Municipal Corporation of Greater Mumbai and Others v. Kohinoor CTNL Infrastructure Company Private Limited and Another20, are highly instructive. In the said case, this Court held as follows, regarding the implications of overcrowding of cities: D “13. ……When the cities are overcrowded, the roads are narrow and the traffic is increasing, the situation will be extremely hazardous for the children and senior citizens. There will be no greens in the buildings and the people will always crave for fresh and pure air. The buildings without greens will add to the ever increasing temperature of the overcrowded cities and urban areas. E To put it differently, all constructions without adequate green and recreational areas will have serious impact on the environment and human life…….”

161Copy pinpoint161. The High Court ought to have been alive to the unique status of Chandigarh and considered the matter from that perspective. F

162Copy pinpoint162. One other aspect that needs to be taken into consideration is that on account of certain acts and omissions of the Chandigarh Administration, in certain areas, there has been a chaotic situation. As already pointed out herein, on one hand, the 2001 Rules have been repealed in the year 2007 and the 2007 Rules have been enacted. In view of Rule 16 of the 2007 Rules, there is a specific bar on fragmentation G of sites or buildings. It is the specific stand of the Chandigarh Administration that construction of apartments is not permissible. On the other hand, the 2017 Rules are enacted in such a way that there is scope for the construction of apartments. Not only that, but the Chandigarh 20 (2014) 4 SCC 574 H

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A Administration is sanctioning plans which, in effect, permit apartmentalization.

163Copy pinpoint163. We may gainfully refer to the following observations made by the Full Bench of the High Court in the case of Dheera Singh (supra), which read thus: B “103. The Executive has in the instant case, with reference to the 1952 Act, failed to live-up to the expectations of the residents as instead of approaching the Ministry concerned with a concrete proposal on data-based information for onward consideration of the Legislature to rejuvenate the 1952 Act and make it more vibrant and alive to the issues in praesentia or in future, it has gone for ad hoc solutions taking refuge under Section 22 of the Act. Strangely, the amount of penalty or fine fixed by the Legislature in the year 1952 (Sections 8, 13 & 15) has not been got revised even after the expiry of 60 years.

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

164Copy pinpoint164. We are therefore inclined to issue certain directions so as to ensure that the issue regarding apartmentalization is first examined by the Heritage Committee so as to preserve the heritage status of Corbusian Chandigarh. We are also inclined to direct the Chandigarh Administration to take steps for amending the CMP-2031 and the 2017 Rules after the issue has been addressed by the Heritage Committee. However, we feel that such important issues cannot be left only to the discretion of the Chandigarh Administration. We therefore find it necessary to direct that after the Chandigarh Administration takes decision to amend the provisions, the same shall be placed before the Central Government for its consideration and final decision. We find that for protecting the heritage status of Corbusian Chandigarh, it is necessary that we should exercise our powers under Article 142 of the Constitution of India and issue certain directions.

165Copy pinpoint165. In that view of the matter, we hold that in view of Rule 14 of the 1960 Rules, Rule 16 of the 2007 Rules and the repeal of the 2001 Rules, fragmentation/division/ bifurcation/apartmentalization of a H residential unit in Phase- I of Chandigarh is prohibited.

RESIDENT’S WELFARE ASSOCIATION AND ANOTHER v. 675 THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]

166Copy pinpoint166. We further issue the following directions: A (i) The Heritage Committee is directed to consider the issue of redensification in Phase-I of the city of Chandigarh; (ii) Needless to state that the Heritage Committee would take into consideration its own recommendations that the northern sectors of Chandigarh “(Corbusian Chandigarh)” B 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 C 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 D 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: E 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 F 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. G (vii) We further direct that hereinafter, the Central Government and Chandigarh Administration will freeze FAR and shall not increase it any further; (viii) That the number of floors in Phase-I shall be restricted to three with a uniform maximum height as deemed appropriate by the Heritage Committee keeping in view the requirement H

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A to maintain the heritage status of Phase-I; and (ix) That 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.

167Copy pinpoint167. Before we part with the judgment, we observe that it is high time that the Legislature, the Executive and the Policy Makers at the Centre as well as at the State levels take note of the damage to the environment on account of haphazard developments and take a call to take necessary measures to ensure that the development does not damage the environment. It is necessary that a proper balance is struck between C sustainable development and environmental protection. We therefore appeal to the Legislature, the Executive and the Policy Makers at the Centre as well as at the State levels to make necessary provisions for carrying out Environmental Impact Assessment studies before permitting urban development.

168Copy pinpoint168. We direct the copy of this judgment to be forwarded to the D Cabinet Secretary to the Union of India and the Chief Secretaries to all the States to take note of the aforesaid observations. We hope that the Union of India as well as the State Governments will take earnest steps in that regard.

169Copy pinpoint169. We must place on record our deep appreciation for the E valuable assistance rendered by Shri P.S. Patwalia and Shri Ranjit Kumar, learned Senior Counsel appearing on behalf of the appellants and Shri K.M. Natraj, learned ASG, Shri Kapil Sibal, Shri Ajay Tewari and Shri Gaurav Chopra, learned Senior Counsel appearing on behalf of the respondents.

170Copy pinpoint170. In the result, the appeals are allowed in the aforesaid terms. F

171Copy pinpoint171. Pending application(s), if any, shall stand disposed of in the above terms. No order as to costs.

Bibhuti Bhushan Bose Appeals allowed and directions issued. (Assisted by : Shubhanshu Das, LCRA) G