Bengaluru a warning; EIA compulsory before urban development: Supreme Court on sub-division of apartments in Chandigarh

The Supreme Court on Tuesday urged policy-makers to consider the adverse environmental impact stemming from haphazard urbanisation while citing the example of the city of Bengaluru [Residents Welfare Association Chandigarh v Union Territory of Chandigarh]..The Court was hearing a plea related to the fragmentation/ sub-division of apartments in Chandigarh when it took note of an article which depicted the “sorry state” of how Bengaluru, which was once considered one India’s best cities, was ruined.“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, Environmental Impact Assessment (EIA) of such development needs to be done,” said the Court..In a nutshell- Chandigarh Estate Rules prohibit fragmentation of any site for creation of apartments, but certain developers were constructing three apartments and selling them to three different people;- High Court dismissed PIL against this practice, while only safe-guarding buyers of such apartments;- Supreme Court held that allowing this practice would permit an illegal act to continue indirectly;- The bench of Justices BR Gavai and BV Nagarathna also impressed on the importance of protecting the city's environment;- Further, it was observed that the High Court ought to have considered Chandigarh’s heritage status.- It, therefore, issued a slew of directions..To elaborate.The Court found that the fragmentation or apartmentalization of single dwelling units in Chandigarh would injure its ‘lungs’ as conceptualised by Le Corbusier, the city’s designer. Therefore, to protect the heritage status of Corbusian Chandigarh, the Court issued a slew of directions preventing the fragmentation of single-dwellings..The case was a challenge to an order of the Punjab and Haryana High Court which refused to entertain a public interest litigation (PIL) petition preventing certain developers in Chandigarh from purchasing plots, constructing three apartments on them and, thereafter, selling them to three different people. The High Court held that the sale of shares out of a building was not barred, and rather was permissible under the general civil law. It was found that mere construction of three floors on a private plot and utilisation as independent units would not amount to fragmentation..The High Court simply issued certain directions to protect the interest of innocent purchasers since they only became co-owners of the entire building and did not have exclusive possession or ownership rights..The Supreme Court, however, held that allowing such a practice to continue would be permitting them to do something indirectly, which is not permissible by the law.This observation came in light of the background of the fact that Chandigarh Apartment Rules, 2001 which allowed single residential units to be sub-divided into more than one apartment, had been repealed.These were repealed as a result of public outcry. Further, the Chandigarh Estate Rules, 2007 again prohibited fragmentation of any site or building..The bench recorded that the High Court failed to consider aspects such as the city’s heritage value and the proportionate rise in traffic if one dwelling unit is converted into three apartments."The High Court ought to have held that the statutory rules framed under 1952 Act expressly prohibit fragmentation/ division/ bifurcation/ apartmentalization of a residential unit in Phase-I of Chandigarh... taking into consideration the heritage status of Phase-I, the High Court ought to have considered the matter in correct perspective," the apex court said..The bench went on to record that the High Court ought to have been alive to Chandigarh’s unique status and viewed the matter from that perspective. Therefore, directions were issued to protect the city’s heritage status:.- The Heritage Committee is directed to consider the issue of redensification in Phase-I of the city of Chandigarh;- Needless to state that 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;- The Heritage Committee shall also take into consideration the impact of such redensification on the parking/traffic issues;- After the Heritage Committee considers the issues, the Chandigarh administration would consider amending the CMP2031 and the 2017 Rules insofar as they are applicable to PhaseI in accordance with the recommendations of the Heritage Committee;- 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;- 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; andb. 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.- We further direct that hereinafter, the Central government and Chandigarh administration will freeze FAR and shall not increase it any further;- 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 to maintain the heritage status of Phase-I; and- That the Chandigarh administration shall not resort to formulate rules or byelaws without prior consultation of the Heritage Committee and prior approval of the Central government..Before concluding the judgement, the Court underscored on the need for governments to take note of the damage caused to the environment in haphazard developments.“It is necessary that a proper balance is struck between sustainable development and environmental protection,” the judgment stated. .The legislature, executive, and policymakers were urged by the top court to make necessary provisions for impact assessment to be conducted before urban development is permitted. A copy of the decision was directed to be sent to the Central government and all State governments..Senior Advocates PS Patwalia and Ranjit Kumar appeared for the appellants. Additional Solicitor General KM Nataraj, with Senior Advocates Kapil Sibal, Ajay Tewari and Gaurav Chopra appeared for the respondents..[Read Judgment]