Summary
After Chandigarh's Apartment Rules, 2001 were repealed and Rule 16 of the 2007 Estate Rules barred fragmentation, developers kept converting single dwelling units in heritage Phase-I into three floor-wise apartments. Each buyer received a 50%, 30% or 20% share and a memorandum allocating a floor, and a survey found 891 such sites. The High Court held this was not fragmentation, since there was no recognised sub-division. The Supreme Court reversed. The scheme was disguised fragmentation that did indirectly what the law forbids. Fragmentation and apartmentalisation of residential units in Phase-I are prohibited, and the special rules under the 1952 Act prevail over the Transfer of Property Act. Under Article 142 the Court froze FAR, capped floors at three, and directed a Heritage Committee review subject to Central approval.
Issues
- Whether conversion of single dwelling units in Phase-I of Chandigarh into floor-wise apartments through sale of percentage shares and co-owners' memoranda of understanding amounts to fragmentation prohibited by Rule 16 of the Chandigarh Estate Rules, 2007.
- What directions are needed to protect the heritage status of Corbusian Chandigarh.
Provisions considered
- Sections 5 and 22; Rule 16 (and Rule 14 of the 1960 Rules), Capital of Punjab (Development and Regulation) Act, 1952; Chandigarh Estate Rules, 2007The rules prohibit fragmentation or amalgamation of any site or building, and as special provisions under the 1952 Act they prevail over the general provisions of the Transfer of Property Act (J.K. Cotton Spinning). (¶¶ 48, 50, 51, 134, 135, 165)
- Repeal of 2001 Rules; Clauses 6.12, 19 and 20.3, Chandigarh Apartment Rules, 2001; Chandigarh Master Plan-2031Apartments permitted between 2001 and 2007 became impermissible after repeal, the Board of Inquiry's rejection of their reintroduction was accepted in CMP-2031, and redensification of Phase-I requires prior approval of the Heritage Committee. (¶¶ 57, 59, 63, 73, 74, 94, 122, 131)
- Articles 49, 51A(f) and (g), and 142, Constitution of IndiaThe State and citizens share a duty to preserve heritage, and Article 142 was invoked to issue directions protecting the heritage status of Phase-I. (¶¶ 143, 144, 164, 166)
Held
- Allowing co-owners to occupy parts of a family property under a family arrangement differs from building three apartments and selling them to strangers; the share-sale and memorandum scheme, whose recitals acknowledge that floor-wise sale is barred, reveals an intention to create disintegrated units and is fragmentation that bypasses the statutory prohibition. (¶¶ 90, 92, 109, 110, 111, 116, 119)
- The High Court's view that there is no apartmentalisation without a sub-division recognised under the repealed 2001 Rules is untenable under Rule 16 of the 2007 Rules, as it would permit indirectly what is prohibited directly; and the 2017 Building Rules permitting three storeys do not justify the practice. (¶¶ 120, 121, 126, 127, 155)
- Redensification of heritage Phase-I without Heritage Committee approval is contrary to CMP-2031 and its estimate of tripled dwelling units is inconsistent with its own aims; the Administration sanctioned plans that were ex facie apartments despite owners' undertakings and ignored parking and traffic impacts. (¶¶ 99, 100, 118, 128, 131, 132, 136, 153)
- Directions issued: the Heritage Committee to consider redensification and traffic impact, CMP-2031 and the 2017 Rules to be amended accordingly with Central Government approval; meanwhile no sanction of plans converting a dwelling into three apartments and no registration of co-owners' floor-wise division agreements; FAR frozen; floors limited to three; and no new rules without the Committee's consultation and Central approval. (¶¶ 164, 165, 166)
- Legislatures, executives and policy makers at the Centre and in the States should provide for Environmental Impact Assessment before permitting urban development, drawing lessons from Bengaluru's experience. (¶¶ 145, 147, 152, 167, 168)
Result
Civil Appeal Nos. 274 and 275 of 2023 allowed; the Punjab and Haryana High Court judgment dated 23.11.2021 in CWP No. 18559 of 2016 set aside, fragmentation and apartmentalisation of residential units in Phase-I held prohibited, and directions issued under Article 142; no costs.