1. This case has been taken up through Video Conferencing via Webex facility in the light of Pandemic Covid-19 situation and as per instructions.
2. Arguments have been heard in part.
3. Instant petition has been filed seeking issuance of directions to restrain the official respondents from permitting residential plots in the Union Territory of Chandigarh which are single dwelling units to be constructed or utilised as apartments. It has been projected on behalf of the petitioners that such activity is not permitted and rather expressly barred under the existing rules, regulations and by-laws of the UT Administration. It has further been submitted that in the year 2001, Chandigarh Administration notified Rules called the Chandigarh Apartment Rules, 2001 whereby even single residential units wherever they existed in the city of Chandigarh could be subdivided into apartments. It is submitted that there was a huge outcry against the provision for having apartments, on the ground that such activity would completely alter and finish the character of the City and the existing infrastructure in terms of sewerage, water, electricity, parking, traffic etc. was wholly insufficient to take on the extra load. Under such situation the Apartment Rules of 2001 were repealed vide notification dated 01.10.2007. It is urged that inspite thereof a large number of single dwelling units are being surreptitiously converted into apartments. Precise contention raised is that residential plots being self contained independent units cannot be further subdivided into separate units and neither sale of independent units even floor wise is liable to be permitted.
4. Per contra stand taken on behalf of the Chandigarh Administration is that no permission is being granted to convert residential houses into apartments on account of the fact that Chandigarh Apartment Rules, 2001 have been repealed. However, there is no bar on alienation/transfer of a share in a property by a true owner as the same is permissible as per the provisions of various enactments and under the recognized principles of civil law. An owner of a freehold residential house is permitted to sell his share or a part of the share in the said house. No floor wise sale of property is permissible under the Capital of Punjab (Development and Regulation) Act, 1952. It has also been averred in the joint written statement filed on behalf of respondents No.1 to 4 that submission of building plans or revised building plans are to be considered and passed as a single unit and not floor wise. Still further in a subsequent affidavit dated 20.07.2021 of the Assistant Estate Officer, Chandigarh and duly placed on record it has been deposed that no sale of defined portion/plot of building is permissible, nor any such sale has been recognised by the Chandigarh Administration except those registered during 2001 to 2007 when the Chandigarh Apartment Rules, 2001 were in vogue.
5. Learned Senior Counsel representing the petitioners has joined issue and has vehemently contended that inspite of the repealing of the Apartment Rules, 2001 vide notification dated 01.10.2007 large number of single dwelling units are being converted into apartments/independent floors. In this regard the averments contained in para 10 and 11 of the writ petition have been adverted to, to assert that a modus is rampant in the City whereby a builder/developer purchases the entire dwelling unit and thereafter seeks three individual people/families, inducing them to buy apartments in such composite dwelling unit viz. Apartment No.1 which is normally to comprise of the ground floor along with basement, apartment No.2 which is the first floor and apartment No.3 which is the second floor along with roof rights/barsati. To put such modus in operation 50% share of the dwelling unit is got registered in the name of the person choosing to pick up apartment No.1, 30% share in lieu of apartment No.2 and 20% share in lieu of apartment No.3. Thereafter these three separate investors/buyers are made to enter into an internal Memorandum Of Understanding regulating the manner in which the separate floors constructed on one single dwelling unit are to be utilised. It is thus argued that such modus operandi has completely subverted the repealing of the Apartment Rules, 2001 and the result is what could not have been done directly is carrying on in an oblique and indirect fashion.
6. As this Court was seized of the matter we thought it fit to scan through the advertisement(s) that may have been carried out in the news dailies of the recent past having circulation in the City so as to find out whether any floor wise sale of dwelling units is contemplated. We have discovered that in the Sunday Tribune dated 25.07.2021 as many as 24 advertisement(s) have been carried scouting for purchasers/investors for separate floors/independent floors. Such 24 advertisement(s) have been culled out and are reproduced hereunder:-
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7. 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.
8. 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 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.Pankah Jain, learned Senior Standing counsel on a specific query having been put, concedes that no such verification has been carried out.
9. We are constrained to observe that UT Administration has chosen to skirt a vital issue that has been raised in the instant petition.
10. 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.
11. To ensure that such exercise does not become overly time consuming and the object is only towards a fact finding exercise 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.
12. At this stage Mr.Sunil Chadha, learned counsel representing respondents No. 12 to 15 submits that certain proprieties have already been identified whereby pursuant to sale of share(s) independent floors have been sold out. Suffice it to observe that it would be open for the parties concerned to bring the details of such properties to the notice of the Chief Architect, UT Administration.
13. Mr. Pankaj Jain, submits that such exercise to be completed and for a report to be submitted would take a period of two weeks. We find that time frame indicated by learned senior standing counsel for U.T., Administration, to be reasonable.
14. List for further consideration on 11.08.2021.
15. Final report pursuant to the directions issued by this Court be furnished on or before the adjourned date.
16. We would also like to observe that the exercise that has been so directed by us is only towards a fact finding exercise which we feel would be imperative for us to take a final view in the matter considering the prayers made in the petition. The present order in no way expresses our opinion on merits.
