“Fragmentation/apartmentalisation of single dwelling units will injure the ‘Lungs’ of the city”; Supreme Court issues directions to protect Corbusian Chandigarh

Taking note of 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, the Supreme Court observed that the warning flagged by the city of Bengaluru needs to be given due attention by the legislature, executive and the policy makers and proper balance needs to be struck between sustainable development and environmental protection.

Supreme Court: Issuing directions to the Chandigarh Administration as well as the Government of India for protecting the heritage status of Le Corbusier’s Chandigarh, the bench of BR Gavai*and BV Nagarathna, JJ has observed that Phase-I of Chandigarh i.e. Corbusian Chandigarh possesses a heritage status and that the fragmentation/apartmentalisation of residential units in Phase-I of Chandigarh is destructive of the vision of Le Corbusier.

“The fragmentation/apartmentalisation of single dwelling units in Phase-I of Chandigarh, in our view, will injure the ‘Lungs’ of the city as conceptualized by Le Corbusier.”

Chandigarh Master Plan-2031

It is pertinent to note that the Chandigarh Master Plan-2031 (CMP-2031) emphasizes that Chandigarh should be included in the UNESCO’s World Heritage List due to its outstanding universal value. However, on one hand the CMP-2031 itself, at more than one place, states that Chandigarh has been planned as a green city with abundance of open space and to ensure that every dwelling has its adequate share of the three elements of Sun, Space and Verdure and hence, does not permit apartmentalisation, however, on the other hand, it estimates the number of dwelling units to be triple of the plots available.

Relevant Rules

The Capital of Punjab (Development and Regulations) Act, 1952, that was enacted to regulate the development of Chandigarh, empowers the Central Government to make rules for carrying out the purposes of the Act. In this case, 2001 and 2007 Rules were specifically under consideration as the unclarity over them has created a chaotic situation in the city. While on one hand, the 2001 Rules were repealed in the year 2007 and the 2007 Rules were enacted, with Rule 16 providing a specific bar on fragmentation of sites or buildings, on the other hand, the 2017 Rules are enacted in such a way that there is scope for the construction of apartments. Not only that, but the Chandigarh Administration is sanctioning plans which, in effect, permit apartmentalisation.

Even the High Court had held that apartmentalisation was not permissible under the 2007 Rules; yet it had held that though the developers/builders are in effect indulging into construction of three apartments in a building, the same does not amount to apartmentalisation.

This approach would amount to permitting something indirectly which is not permitted directly and will end up creating a chaotic situation in the city.

The problem with the Punjab and Haryana High Court

The High Court issued certain directions so as to protect the interest of home buyers and 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 under its nose”.

It, hence, 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.
  • to mention in the said notice that fragmentation of site/building is specifically prohibited under the 2007 Rules.
  • 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.

The Supreme Court, however, noticed that 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/apartmentalisation of a residential unit in Phase-I of Chandigarh. Further,

“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, apartmentalisation was not permissible, it ought not to have permitted a modus operandi which indirectly permits to do what was not permissible in law.”

The ill-intentioned Buyer-Seller Agreements

Some of the settlement deeds perused by the Court showed that the understanding between the parties is that they are independent owners of different floors.  It also revealed 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.

Hence, the real intention behind the transactions is nothing but an attempt to by-pass the statutory prohibition

“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.”

Directions to preserve the heritage status of Corbusian Chandigarh

Holding 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/apartmentalisation of a residential unit in PhaseI of Chandigarh is prohibited, the Court issued the following directions:

(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 Corbusian Chandigarh should be preserved in their present form;

(iii) The Heritage Committee shall also take into consideration the impact of such redensification on the parking/traffic issues;

(iv) After the Heritage Committee considers the issues, the Chandigarh Administration would   consider amending   the   CMP-2031 and the 2017 Rules insofar as they are applicable to Phase-I in accordance with the recommendations of the Heritage Committee;

(v) Such amendments shall be placed before the Central Government, which shall take a decision with regard to approval of such amendments keeping in view the requirement of maintaining the heritage status of Le Corbusier zone;

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

a. the Chandigarh Administration shall not sanction any plan of a building which ex-facie appears to be a modus operandi to convert a single dwelling unit into three different apartments occupied by three strangers; and

b. no Memorandum of Understanding (MoU) or agreement or settlement amongst co-owners of a residential unit shall be registered nor shall it be enforceable in law for the purpose of bifurcation or division of a single residential unit into floor-wise apartments.

(vii) The Central Government and Chandigarh Administration will freeze FAR and shall not increase it any further;

(viii) The number of floors in Phase-I shall be restricted to three with a uniform maximum height as deemed appropriate by the Heritage Committee keeping in view the requirement to maintain the heritage status of Phase-I;

ix) The Chandigarh Administration shall not resort to formulate rules or bye-laws without prior consultation of the Heritage Committee and prior approval of the Central Government.

Word of caution

Taking note of the story published in India Today weekly[1], that highlighted 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, the Court observed that the warning flagged by the city of Bengaluru needs to be given due attention by the legislature, executive and the policy makers.

It, hence, observed that, it is high time that the Legislature, the Executive and the Policy Makers at the Centre as well as at the State levels take note of the damage to the environment on account of haphazard developments and take a call to take necessary measures to ensure that the development does not damage the environment. It is necessary that a proper balance is struck between sustainable development and environmental protection.

Forwarding the copy of the judgment to the Cabinet Secretary to the Union of India and the Chief Secretaries to all the States, the Court hence appealed 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.

[Resident’s Welfare Association v. Union Territory of Chandigarh, C.A. No.-000274-000274 / 2023, decided on 10.01.2023]

[1] Bengaluru – How to Ruin India’s Best City” by Raj Chengappa with Ajay Sukumaran, dated 24.10.2022

*Judgment authored by: Justice BR Gavai

Appearances by:

For appellants: Senior Advocates P.S. Patwalia and Ranjit Kumar

For Respondents: ASG K.M. Natraj and Senior Advocates Kapil Sibal, Ajay Tewari and Gaurav Chopra

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