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

- **Citation:** [2023] 1 S.C.R. 601
- **Court:** Supreme Court of India
- **Decided:** 2023-01-10
- **Case number:** Civil Appeal No. 274 of 2023
- **Bench:** B. R. Gavai, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/resident-s-welfare-association-and-another-v-the-union-territory-of-chandigarh-36762
- **Pages:** 76

## Headnote

Urban Development - Town Planning - Committee for
Chandigarh Master Plan, 2031 (CMP-2031) - Issue of
redensification in Phase-I sector in the city of Chandigarh -
Fragmentation/division/bifurcation/apartmentalization of residential
units - Held: In view of r.14 of the Chandigarh (Sale of Sites and
Building) Rules, 1960, r.16 of the Chandigarh Estate Rules, 2007
and repeal of the Chandigarh Apartment Rules, 2001, fragmentation/
division/bifurcation/ apartmentalization of residential units in
Phase-I sector of Chandigarh is prohibited - On facts, authorities
of the Chandigarh Administration were blindly sanctioning building
plans, when from the building plans itself it was apparent that the
same were in effect converting one dwelling unit into three apartments
- Such a haphazard growth may adversely affect the heritage status
of Phase-I of Chandigarh - The Committee for Chandigarh Master
Plan, 2031 (CMP-2031) itself, at more than one place, states that
Chandigarh has been planned as a green city with abundance of
open space and to ensure that every dwelling has its adequate share
of the three elements of Sun, Space and Verdure - Fragmentation/
apartmentalization of single dwelling units in Phase-I of Chandigarh
will injure the 'Lungs' of the city as conceptualized by Le Corbusier
- For protecting the heritage status of Corbusian Chandigarh,
directions issued u/Art.142 of the Constitution - Issue regarding
apartmentalization to be first examined by the Chandigarh Heritage
Conservation Committee - Chandigarh Administration to thereafter
take steps for amending the CMP-2031 and the Chandigarh Building
Rules (Urban), 2017 and subsequently, the same to be placed before
the Central Government for its consideration and final decision -
Chandigarh Estate Rules, 2007 - r.16 - Chandigarh (Sale of Sites
A
B
C
D
E
F
G
H
602
SUPREME COURT REPORTS
[2023] 1 S.C.R.
and Building) Rules, 1960 - r. 14 - Chandigarh Building Rules
(Urban), 2017 - Chandigarh Apartment Rules, 2001 - Constitution
of India - Arts. 142.
Urban Development - Damage to environment on account of
haphazard developments - Necessity of proper balance between
sustainable development and environmental protection - The
Legislature, the Executive and the Policy Makers at the Centre as
well as at the State levels to make necessary provisions for carrying
out Environmental Impact Assessment studies before permitting urban
development.
Word and Phrases: "Fragment" and "Fragmentation" -
Meaning of.
Allowing the appeals and issuing directions, the Court
HELD : 1. From the material placed on record, it appears
that the modus operandi that is devised by the developers is that
the allottee of the house would convey 50% of the share to the
first purchaser, 30% to the second purchaser and 20% to the
third purchaser. Thereafter, all the three purchasers would enter
into either a settlement deed or a Memorandum of Understanding
(MoU) under which the party having 50% share of the house is
entitled to the entire ground floor with basement including the
back courtyard but excluding the front courtyard and the staircase.
The second purchaser having 30% share in the house would be
entitled to the entire first floor excluding the staircase. The third
purchaser having 20% share of the house would be entitled to
the entire second floor including the roof of the second floor but
excluding the staircase. It is clear that, the parties who entered
into such an MoU, were conscious of the fact that as per the
Rules of the Estate Office, it could not be mentioned in the sale
deed that the possession of particular floor is given to the
purchaser. It is also clear that the MoU clearly states that all the
parties, after entering into such a document, would peacefully
hold, use and enjoy their respective portions as their own property
A
B
C
D
E
F
G
H
603
without any hindrance, interruption, claim or demand whatsoever
from each other. In any case, what is to be found is the real
intention behind the transaction.

## Text

_Characters 0–39,957 of 179,374. This is a partial read: ask again with offset=39957 for what follows._

A
B
C
D
E
F
G
H
601
 [2023] 1 S.C.R. 601
601
RESIDENT'S WELFARE ASSOCIATION AND ANOTHER
v.
THE UNION TERRITORY OF CHANDIGARH AND OTHERS
(Civil Appeal No. 274 of 2023)
JANUARY 10, 2023
[B. R. GAVAI AND B. V. NAGARATHNA, JJ.]
Urban Development - Town Planning - Committee for
Chandigarh Master Plan, 2031 (CMP-2031) - Issue of
redensification in Phase-I sector in the city of Chandigarh -
Fragmentation/division/bifurcation/apartmentalization of residential
units - Held: In view of r.14 of the Chandigarh (Sale of Sites and
Building) Rules, 1960, r.16 of the Chandigarh Estate Rules, 2007
and repeal of the Chandigarh Apartment Rules, 2001, fragmentation/
division/bifurcation/ apartmentalization of residential units in
Phase-I sector of Chandigarh is prohibited - On facts, authorities
of the Chandigarh Administration were blindly sanctioning building
plans, when from the building plans itself it was apparent that the
same were in effect converting one dwelling unit into three apartments
- Such a haphazard growth may adversely affect the heritage status
of Phase-I of Chandigarh - The Committee for Chandigarh Master
Plan, 2031 (CMP-2031) itself, at more than one place, states that
Chandigarh has been planned as a green city with abundance of
open space and to ensure that every dwelling has its adequate share
of the three elements of Sun, Space and Verdure - Fragmentation/
apartmentalization of single dwelling units in Phase-I of Chandigarh
will injure the 'Lungs' of the city as conceptualized by Le Corbusier
- For protecting the heritage status of Corbusian Chandigarh,
directions issued u/Art.142 of the Constitution - Issue regarding
apartmentalization to be first examined by the Chandigarh Heritage
Conservation Committee - Chandigarh Administration to thereafter
take steps for amending the CMP-2031 and the Chandigarh Building
Rules (Urban), 2017 and subsequently, the same to be placed before
the Central Government for its consideration and final decision -
Chandigarh Estate Rules, 2007 - r.16 - Chandigarh (Sale of Sites
A
B
C
D
E
F
G
H
602
SUPREME COURT REPORTS
[2023] 1 S.C.R.
and Building) Rules, 1960 - r. 14 - Chandigarh Building Rules
(Urban), 2017 - Chandigarh Apartment Rules, 2001 - Constitution
of India - Arts. 142.
Urban Development - Damage to environment on account of
haphazard developments - Necessity of proper balance between
sustainable development and environmental protection - The
Legislature, the Executive and the Policy Makers at the Centre as
well as at the State levels to make necessary provisions for carrying
out Environmental Impact Assessment studies before permitting urban
development.
Word and Phrases: "Fragment" and "Fragmentation" -
Meaning of.
Allowing the appeals and issuing directions, the Court
HELD : 1. From the material placed on record, it appears
that the modus operandi that is devised by the developers is that
the allottee of the house would convey 50% of the share to the
first purchaser, 30% to the second purchaser and 20% to the
third purchaser. Thereafter, all the three purchasers would enter
into either a settlement deed or a Memorandum of Understanding
(MoU) under which the party having 50% share of the house is
entitled to the entire ground floor with basement including the
back courtyard but excluding the front courtyard and the staircase.
The second purchaser having 30% share in the house would be
entitled to the entire first floor excluding the staircase. The third
purchaser having 20% share of the house would be entitled to
the entire second floor including the roof of the second floor but
excluding the staircase. It is clear that, the parties who entered
into such an MoU, were conscious of the fact that as per the
Rules of the Estate Office, it could not be mentioned in the sale
deed that the possession of particular floor is given to the
purchaser. It is also clear that the MoU clearly states that all the
parties, after entering into such a document, would peacefully
hold, use and enjoy their respective portions as their own property
A
B
C
D
E
F
G
H
603
without any hindrance, interruption, claim or demand whatsoever
from each other. In any case, what is to be found is the real
intention behind the transaction. When the transaction clearly
shows that it is being entered into for the purpose of constructing
three different apartments on each floor and also mentions that
the same is not permissible under the existing rules, the intention
of the parties is to construct three different units which are
disintegrated. This is nothing else but fragmentation. It is an
attempt to by-pass the statutory prohibition. [Paras 109, 111, 113
and 116][656-H; 657-A-C, E-F; 658-B-D; 659-C]
2. In the teeth of the undertaking which the owner is
required to furnish in an application for obtaining the occupation
certificate; and the specific stand of Chandigarh Administration
that it does not permit construction of apartments, it is difficult
to appreciate as to how building plans have been sanctioned which
ex-facie show that they are nothing else but apartments. It is
clear that the modus operandi of the developers is, in effect,
resulting into apartmentalization of the buildings. What is not
permissible in law after the repeal of the Chandigarh Apartment
Rules, 2001 on 1st October 2007, and enactment of Rule 16 of
the the Chandigarh Estate Rules, 2007, is indirectly being
permitted under the guise of sale of shares and subsequent MoUs.
[Paras 118 and 119][659-F-G]
3. Allowing a modus operandi to continue, which, in effect,
nullifies the effect of repeal of the 2001 Rules, enactment of the
2007 Rules, and recalling an attempt to reintroduce
apartmentalization in the draft Committee for Chandigarh Master
Plan, 2031 (CMP-2031), would be permitting to do something
indirectly which is not permissible in law. In order to maintain
the "Corbusian Chandigarh" status of Phase-I of Chandigarh, no
redensification is to be done without the permission of the
Heritage Committee. Undisputedly, permitting three apartments
to be constructed in one dwelling unit would result in increasing
the density in population in the Le Corbusier zone. This cannot
RESIDENT'S WELFARE ASSOCIATION AND ANOTHER v.
THE UNION TERRITORY OF CHANDIGARH
A
B
C
D
E
F
G
H
604
SUPREME COURT REPORTS
[2023] 1 S.C.R.
be done without the same being approved by the Heritage
Committee and the Central Government. [Paras 127 and
128][663-F-H; 664-A-B]
4. Taking overall view of the matter, it is clear that
permitting redensification in Phase-I, which has heritage value,
on account of being "Corbusian Chandigarh", without the same
being approved by the Heritage Committee, is contrary to the
Committee for Chandigarh Master Plan, 2031 (CMP-2031) itself.
The CMP-2031 on one hand does not permit apartmentalization,
however, on the other hand, it estimates the number of dwelling
units to be triple of the plots available. Though on account of
repeal of the 2001 Rules in the year 2007 and on account of Rule
16 of the 2007 Rules, the High Court itself holds that
apartmentalization is not permissible; it goes on to hold that
though the developers/builders are in effect indulging into
construction of three apartments in a building, the same does
not amount to apartmentalization. This would amount to permitting
something indirectly which is not permitted directly. The
authorities of the Chandigarh Administration are blindly
sanctioning building plans, when from the building plans itself it
is apparent that the same are in effect converting one dwelling
unit into three apartments. Such a haphazard growth may
adversely affect the heritage status of Phase-I of Chandigarh
which is sought to be inscribed as a UNESCO's heritage city.
[Para 153][671-B-E]
5. The Committee for Chandigarh Master Plan, 2031 (CMP2031) itself, at more than one place, states that Chandigarh has
been planned as a green city with abundance of open space and
to ensure that every dwelling has its adequate share of the three
elements of Sun, Space and Verdure. The fragmentation/
apartmentalization of single dwelling units in Phase-I of
Chandigarh will injure the 'Lungs' of the city as conceptualized
by Le Corbusier. This Court is therefore inclined to issue certain
directions so as to ensure that the issue regarding
A
B
C
D
E
F
G
H
605
apartmentalization is first examined by the Heritage Committee
so as to preserve the heritage status of Corbusian Chandigarh.
This Court is also inclined to direct the Chandigarh
Administration to take steps for amending the CMP-2031 and
the Chandigarh Building Rules (Urban), 2017 after the issue has
been addressed by the Heritage Committee. However, such
important issues cannot be left only to the discretion of the
Chandigarh Administration. It is therefore necessary to direct
that after the Chandigarh Administration takes decision to amend
the provisions, the same shall be placed before the Central
Government for its consideration and final decision. For
protecting the heritage status of Corbusian Chandigarh, it is
necessary to exercise powers under Article 142 of the
Constitution of India and issue certain directions. [Paras 160 and
164][673-B-C; 674-E-G]
6. In view of Rule 14 of the Chandigarh (Sale of Sites and
Building) Rules, 1960, Rule 16 of the Chandigarh Estate Rules,
2007 and the repeal of the Chandigarh Apartment Rules, 2001,
fragmentation/division/bifurcation/ apartmentalization of a
residential unit in Phase-I of Chandigarh is prohibited. [Para
165][674-G-H]
7. The following directions were issued: (i) The Heritage
Committee shall consider the issue of redensification in Phase-I
of the city of Chandigarh; (ii) The Heritage Committee would
take into consideration its own recommendations that the
northern sectors of Chandigarh "(Corbusian Chandigarh)" should
be preserved in their present form; (iii)The Heritage Committee
shall also take into consideration the impact of such redensification
on the parking/traffic issues; (iv) After the Heritage Committee
considers the issues, the Chandigarh Administration would
consider amending the CMP-2031 and the 2017 Rules insofar as
they are applicable to Phase-I in accordance with the
recommendations of the Heritage Committee; (v) Such
amendments shall be placed before the Central Government,
RESIDENT'S WELFARE ASSOCIATION AND ANOTHER v.
THE UNION TERRITORY OF CHANDIGARH
A
B
C
D
E
F
G
H
606
SUPREME COURT REPORTS
[2023] 1 S.C.R.
which shall take a decision with regard to approval of such
amendments keeping in view the requirement of maintaining the
heritage status of Le Corbusier zone; (vi) Till a final decision as
aforesaid is taken by the Central Government: (a.) the Chandigarh
Administration shall not sanction any plan of a building which
ex- facie appears to be a modus operandi to convert a single
dwelling unit into three different apartments occupied by three
strangers; and (b.) no Memorandum of Understanding (MoU) or
agreement or settlement amongst co-owners of a residential unit
shall be registered nor shall it be enforceable in law for the
purpose of bifurcation or division of a single residential unit into
floor-wise apartments. (vii) The Central Government and
Chandigarh Administration will freeze FAR and shall not increase
it any further; (viii) The number of floors in Phase-I shall be
restricted to three with a uniform maximum height as deemed
appropriate by the Heritage Committee keeping in view the
requirement to maintain the heritage status of Phase-I; and (ix)
The Chandigarh Administration shall not resort to formulate rules
or bye-laws without prior consultation of the Heritage Committee
and prior approval of the Central Government. [Para166][675A-H; 676-A-B]
8. It is high time that the Legislature, the Executive and
the Policy Makers at the Centre as well as at the State levels
take note of the damage to the environment on account of
haphazard developments and take a call to take necessary
measures to ensure that the development does not damage the
environment. It is necessary that a proper balance is struck
between sustainable development and environmental protection.
The Legislature, the Executive and the Policy Makers at the
Centre as well as at the State levels to make necessary provisions
for carrying out Environmental Impact Assessment studies before
permitting urban development. [Para 167][676-B-D]
Municipal Corporation of Greater Mumbai and Others
v. Kohinoor CTNL Infrastructure Company Private
Limited and Another (2014) 4 SCC 574- relied on.
A
B
C
D
E
F
G
H
607
New Delhi Municipal Council and Others v. Tanvi
Trading and Credit Private Limited and Others (2008)
8 SCC 765 : [2008]12 SCR 867; J.K. Cotton Spinning
& Weaving Mills Co., Ltd. v. The State of Uttar Pradesh
and Others [1961] 3 SCR 185; Tilak Raj Bakshi v.
Avinash Chand Sharma (Dead) Through Legal
Representatives and Others (2020) 15 SCC 605 : [2019]
10 SCR 251; Kochkunju Nair v. Koshy Alexander and
Others (1999) 3 SCC 482 : [1999] 2 SCR 169; Jai
Singh and Others v. Gurmej Singh (2009) 15 SCC 747
: [2009] 1 SCR 413; Chandigarh Administration v.
Chander Parkash Malhotra and Others Civil Appeal
No. 4974 of 1992 dated 24th November 1992; Dr. K.A.
Dhairyawan and Others v. J.R. Thakur and Others
[1959] SCR 799; Rev. FR. K.C. Alexander v. State of
Kerala (1973) 2 SCC 737 : [1974] 1 SCR 399;
Bangalore Medical Trust v. B.S. Muddappa and Others
(1991) 4 SCC 54 : [1991] 3 SCR 102; Shanti Sports
Club and Another v. Union of India and Others (2009)
15 SCC 705 : [2009] 13 SCR 710 - referred to.
Chander Parkash Malhotra v. Ved Parkash Malhotra
and Others 1991 SCC OnLine P&H 245; Hardit Singh
and Others v. Gurmukh Singh and Others 1918 SCC
OnLine PC 2; Sant Ram v. Daya Ram and Others AIR
1961 P&H 528; R.G. Hiremath and Another v. T.
Krishnappa 1977 SCC OnLine Kar 96; Laxmipat
Singhania v. Larsen and Toubro, Ltd. 1949 SCC
OnLine Bom 11; Saiffuddin v. The Commissioner of
Income Tax (129) 1985 SCC OnLine Raj 97; Sh.
Chander Parkash Malhotra v. Sh. R.B.S. Chahal 1993
SCC OnLine P&H 1179; Arvind Kapoor v. Kumud
Kapoor and Another [Punjab & Haryana High Court -
Regular Second Appeal No. 1562 of 2012 dated
28.05.2019] and Dheera Singh v. U.T. Chandigarh
Admn. and Others 2012 SCC OnLine P&H 21473 -
referred to.
RESIDENT'S WELFARE ASSOCIATION AND ANOTHER v.
THE UNION TERRITORY OF CHANDIGARH
A
B
C
D
E
F
G
H
608
SUPREME COURT REPORTS
[2023] 1 S.C.R.
Case Law Reference
[1999] 2 SCR 169
referred to
Para 34
[2009] 1 SCR 413
referred to
Para 34
[2019] 10 SCR 251
referred to
Para 35
[1959] SCR 799
referred to
Para 40
[1974] 1 SCR 399
referred to
Para 40
[1991] 3 SCR 102
referred to
Para 123
[2009] 13 SCR 710
referred to
Para 124
[2008] 12 SCR 867
referred to
Para 129
[1961] 3 SCR 185
referred to
Para 134
(2014) 4 SCC 574
relied on
Para 160
CIVIL APPELLATE JURISDICTION : Civil Appeal No.274 of
2023.
From the Judgment and Order dated 23.11.2021 of the High Court
of Punjab and Haryana at Chandigarh in Civil Writ Petition No.18559 of
2016.
With
Civil Appeal No.275 of 2023.
K. M. Natraj, ASG, P. S. Patwalia, Ranjit Kumar, Kapil Sibal,
Ajay Tewari, Gaurav Chopra, Sr. Advs., Ashok K. Mahajan, Gaurav
Patwalia, Ms. Harsika Verma, Ms. Natasha Dalmia, Vanshdeep Dalmia,
Sarad Kumar Singhania, Vatsal Joshi, Mohd. Akhil, Nakul Chengappa
K. K., Ms. Akiti A. Manubarwale, Gurmeet Singh Makker, Ms. Misha
Rohatgi, Ajit Joher, Aditya Chadha, Devansh Srivastava, Bharat Monga,
Nakul Mohta, Abhimanyu Tewari, Ms. Eliza Bar, Shree Pal Singh, Ms.
Dilmrig Nayani, Tushar Bathija, Siddhant Saroha, Reshabh Bajaj, Vardaan
Seth, Advs. for the appearing parties.
A
B
C
D
E
F
G
H
609
The Judgment of the Court was delivered by
INDEX*
I.
BACKGROUND.................................. Paras 3 to 12
II.
PROCEEDINGS BEFORE THE
HIGH COURT..................................... Paras 13 to 19
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
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
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.
1. Leave granted.
2. "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
Prime Minister, while laying down the founding principles of a new city
for Capital of the State of Punjab.
I. BACKGROUND:
3. After India attained independence in the year 1947, the
Government of Punjab in consultation with the Government of India
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,
RESIDENT'S WELFARE ASSOCIATION AND ANOTHER v.
THE UNION TERRITORY OF CHANDIGARH
*Ed. Note : Pagination in the Index is as per the original judgment.
A
B
C
D
E
F
G
H
610
SUPREME COURT REPORTS
[2023] 1 S.C.R.
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.
4. 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.
5. On division of the State of Punjab into States of Punjab and
Haryana, the city was made a Union Territory (UT), and became the
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.
6. 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
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 1991 SCC OnLine P&H 245
A
B
C
D
E
F
G
H
611
case, the High Court held the said Rule 14 to be ultra vires to the
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.
7. 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
(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.
8. In the year 2009, a Committee for Chandigarh Master Plan,
2031 (for short, "CMP-2031") came to be constituted. In the year 2010,
a Committee of Experts (for short, "Expert Committee") came to 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.
9. In the Draft CMP-2031, the 2001 Rules were re- introduced.
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
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 24th November 1992
RESIDENT'S WELFARE ASSOCIATION AND ANOTHER v.
THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]
A
B
C
D
E
F
G
H
612
SUPREME COURT REPORTS
[2023] 1 S.C.R.
10. 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.
11. 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.
12. 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:
13. Since, in spite of its specific stand, Chandigarh Administration
was not taking any steps to prevent fragmentation/apartmentalisation of
A
B
C
D
E
F
G
H
613
single dwelling units, a Special Leave Petition (Civil) being No. 15789 of
2017 came to be filed before this Court. This Court, vide order dated
24th May 2017, allowed to withdraw the said petition.
14. 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.
15. 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.
16. 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.
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.
RESIDENT'S WELFARE ASSOCIATION AND ANOTHER v.
THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]
A
B
C
D
E
F
G
H
614
SUPREME COURT REPORTS
[2023] 1 S.C.R.
17. 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?
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'?
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?
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?"
18. 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.
19. 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
A
B
C
D
E
F
G
H
615
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:
20. 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
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
appeals.
21. Shri Patwalia submitted that, Phase-I Sectors, which constitute
"Corbusian Chandigarh", have now derived a modern heritage value.
He submitted that, if any apartment is permitted to be constructed on
single dwelling unit, it will jeopardize the original character of the city.
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.
22. Shri Patwalia submitted that, though the 2001 Rules permitted
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
RESIDENT'S WELFARE ASSOCIATION AND ANOTHER v.
THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]
A
B
C
D
E
F
G
H
616
SUPREME COURT REPORTS
[2023] 1 S.C.R.
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.
23. 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.
24. 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.
25. 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.
26. 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
A
B
C
D
E
F
G
H
617
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.
27. 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.
28. 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.
29. 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.
RESIDENT'S WELFARE ASSOCIATION AND ANOTHER v.
THE UNION TERRITORY OF CHANDIGARH [B. R. GAVAI, J.]
A
B
C
D
E
F
G
H
618
SUPREME COURT REPORTS
[2023] 1 S.C.R.
IV. SUBMISSIONS OF RESPONDENTS:
30. 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.
31. 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.
32. 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.