IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5539 of 2009 (O&M) Date of decision: 4th November, 2009 Smt. Sandhaya Jain and another … Petitioners Versus Chandigarh Administration and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Atul Lakhanpal, Senior Advocate with Mr. R.S. Chahal, Advocate for the petitioners. Mr. Jagmohan Ghumman, Advocate for the respondents. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Civil Misc. No.15176 of 2009 Application is allowed, subject to all just exceptions. Civil Writ Petition No. 5539 of 2009 Petitioners were allotted Shop-Cum-Office No.22 in Sector 8, Chandigarh in the year 1962. They had earlier constructed the building as SCO as per the approved building plan sanctioned by the Building Branch of Chandigarh Administration. The SCO consisted of ground floor and first floor. The petitioners later consulted an Architect and got prepared a building plan for providing basement to the building by applying latest technology. When digging for the purposes of constructing basement was Civil Writ Petition No. 5539 of 2009 (O&M) undertaken, impugned order (Annexure P-6) was passed by the Assistant Estate Officer, Union Territory, Chandigarh. It was observed therein that construction of the basement is unauthorized and is in violation of the building bye-laws. It was further observed by the Assistant Estate Officer that owners had dug basement endangering serious damage to the adjoining built-up sites. Therefore, notice was issued and petitioners were asked to remove the unauthorized construction raised at site. Since petitioners failed to comply with the directions, SDO (Buildings) was directed to execute the order and demolish unauthorized construction with immediate effect and report compliance thereof. Against this order, the present writ petition has been filed. Chandigarh Administration, in response to the writ petition, has taken a stand that even though on 20th May, 1988 they had allowed the conversion from Shop-Cum-Flat to Shop-Cum-Office, but digging/erection of basement was never allowed. They have relied upon Rule 5 of the Punjab Capital (Development & Regulation) Building Rules, 1952 to state that no person is permitted to carry out any erection of building without the previous sanction of the Chief Administrator. To the written statement, replication was filed. Both the parties to the writ petition have relied upon Clause 17 of Architecture Control Design Order issued by the Chandigarh Administration vide Annexure P-9. Clause 17 reads as under: “17. Basement can be allowed up to the entire zoned area for exclusive purpose of parking (minimum of 80%) and services/ storage (maximum of 20%) in non-residential buildings. In residential buildings, basement can be allowed only below built up space. Basement can be allowed only below the built up area of ground floor including the rear courtyard in Show Rooms, SCOs, SCFs, Bay-shops and similar buildings. In show-rooms, SCOs, SCFs, bay-shops and similar buildings the same can also be used for habitable 2 Civil Writ Petition No. 5539 of 2009 (O&M) purposes (without toilet, kitchen or any hazardous activity) provided they meet other requirements of building rules and further provided that they meet the requirement of circulation, safety, air circulation, ventilation, light and requirement of two separate staircases.” A perusal of Clause 17 show that there is a rider in the Clause that anybody constructing the basement has to meet with other requirements of building rules and other conditions of safety, air circulation, ventilation, light and requirement of two separate staircases. Building rules have been attached along with the written statement as Annexure R-1. Rule 3 reads as under: “3. In all residential buildings where basement is allowed at present, the area of basement shall be allowed on uniform basis of 100% of the total permissible ground coverage subject to the provisions of The Punjab Building Bye-Laws) and technical feasibility at site. The construction shall be permitted only under the built up area on the ground floor. This shall be subject to the conditions that a minimum 8’-0” wide no basement zone would be maintained on the side of the plot where the structural house is already constructed without basement to maintain the structural stability. Also the overall height of the building shall not be increased. Further no access to basement directly from outside shall be provided.” Mr. Atul Lakhanpal, appearing for the petitioners, has stated that this building rule cannot be applied to the case of the petitioner, as it is specifically stated in the rules that this only applies to the residential buildings. Mr. Jagmohan Ghumman, appearing for the respondents, has stated that since safety of the adjoining buildings, which were constructed 3 Civil Writ Petition No. 5539 of 2009 (O&M) prior in time, was threatened, therefore, directions were issued to the petitioners to comply with the necessary requirements of safety. It will be pertinent to mention here that respondents were allowed to carry inspection by this Court vide order dated July 20, 2009. Inspection report has been placed on the Court file. The report states as under: “It is pointed out that rear courtyard of SCO/SCF no.1 to 24, Sector 8, Chandigarh cannot be allowed to be covered as per clause no.16 of Architectural Control design (drg. No.48 job no.32-C) applicable for the said site. Clause no.16 is reproduced as below. ‘Revision made vide Finance Secretary memo no. U.T. 1990 dated 10-05-1979 no rear courtyard coverage is allowed to shop-cum-flat no.1 to 24 of shopping centre in sector-8 in suppression of note no.15 of Architectural Control sheet’ (print of drg. No.48 of job no.32-C enclosed). Therefore, basement floor slab cannot be allowed in any case in the rear open courtyard. However, as per clause no.17 of Chief Administrator, U.T., Chandigarh order dated 16-10-08 that “Basement can be allowed only below the built up area of ground floor including the rear courtyard in Show Rooms, SCOs, SCFs, Bay-shops and similar buildings. If there is no basement in the adjoining plots, basement can not be allowed touching the common walls. The internal plinth height has been raised up to the height of 1’-4 ½” (unfinished) from the Public corridor level that do not conform to the Architectural Control sheet applicable for the above said site. As per Architectural Control design applicable for the site in question, the plinth level of Public corridor and the said shop-cum-office has to be kept same i.e. +12”. As per the building plans submitted by the Pvt. Architect, the plinth level has been indicated as + 2’-9” 4 Civil Writ Petition No. 5539 of 2009 (O&M) (finished) against the prescribed plinth level +12” as per Architectural Control design applicable for the said site. Ground floor slab has been laid at site in the half portion (approx.) of the said plot. One set of prints bearing drg. No.48 to 53 of job no.32- C, approved Architectural Control applicable to the site nos. 1 to 24, Sector – 8, Chandigarh is enclosed herewith for reference.” The Court, for the safety of the adjoining buildings, has to necessarily rely upon experts and those who have got necessary expertise in architecture and safety of the buildings. During the course of arguments, it surfaced that the building plan of the SCF No.22, Sector 8, Chandigarh has not been sanctioned. Counsel for the petitioner, referring to the replication, has stated that Chandigarh Administration has issued a notification dated 22nd January, 1993 and according to Clause 3 of that notification, construction of building can be carried without the sanction of building plan. Be that as it may, since there is a serious dispute between Chandigarh Administration and the petitioners, whether the proposed building is in consonance with the rules or not, it is advisable that at the first instance, building plan submitted by the petitioners is approved and sanctioned by the Chandigarh Administration. Accordingly, respondents are directed to examine/evaluate the building plan submitted by the petitioners within two months. Till then, no construction work shall be undertaken by the petitioners. While examining the building plan, the Chandigarh Administration shall disclose objections in writing to the petitioners, so that they are able not only to meet objections, but also to take recourse to the remedy available to them under provisions of law. Needless to say, when the objections are disclosed to the petitioners, they 5 Civil Writ Petition No. 5539 of 2009 (O&M) may venture to satisfy the authorities that the objections cannot be sustained. In case petitioners take this recourse, the reply submitted by the petitioners to the objections shall be dealt and petitioners will be communicated response of the Chandigarh Administration by passing a speaking order. With the observations made above, present writ petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE November 4, 2009 rps 6