RAJ MOHAN SHARMA Vs. JAIPUR NAGAR NIGAM

JUDGEMENT

(1.) Prevented from constructing a roof over his head, in accordance with the JDA (Jaipur Region) Building Regulations, 2000 ('the Regulations', for short) because of a decision taken by the Building and Works Committee ('the Committee', for short) on 15-6- 2005, and due to the letter dated 10-8-2005, rejecting the plan submitted by the petitioner, the petitioner has challenged the same before this Court.

(2.) The brief facts of the case are that the petitioner is the owner of a plot, Plot No. C-41, Bapu Nagar, Jaipur, admeasuring 706.65 sq. meters. Since the petitioner wanted to construct a house on the said plot, on 16-3-2005, he moved an application for seeking permission for construction of a house on the said plot. Along with the said application, he also annexed a map for approval of the Jaipur Nagar Nigam ('the Nigam', for short). Vide order dated 26-4-2005, the Nigam pointed out certain deficiencies in the map and directed the petitioner to modify the map accordingly. He complied with the same. After scrutinizing the modified map, vide letter dated 10-8-2005, the petitioner was informed that since the Committee of the Nigam had taken a decision on 15-6-2005, therefore, he could be allowed to construct only ground floor plus two more floors, but with the rider that he would construct only "a single residential unit" on each floor. He was further granted the permission to construct the basement and stilt in accordance with the Regulations. Since the petitioner wants to construct more than "one residential unit" on each floor, in accordance with needs of his family, he has challenged both the decisions of the Committee dated 15-6-2005 and the order dated 10- 8-2005 before this Court.

(3.) Mr. Kamlakar Sharma, the learned Counsel for the petitioner, has vehemently raised several contentions before this Court; firstly, every person has the fundamental right to live. The person also has the fundamental right to have a roof over his head, a house for his safety, if his financial position allows him to do so, and if the law permits him to do so. The right to own and construct a house emanates from the right to "life" and "personal liberty" contained in Article 21 of the Constitution of India. Of course, the said right can be regulated by a procedure established by law. Thus, the petitioner enjoys the right to construct a house in accordance with the procedure established by law. Secondly, Section 96 of the Jaipur Development Authority Act, 1982 ('the Act' for short) permits Jaipur Development Authority ('the JDA', for short) to make Regulations for all or any of the matters to be provided under the JDA Act. Consequently, under the said power, the JDA had promulgated the Regulations. Subsequently, the Nigam also adopted the said Regulations. The Regulations, thus, have a statutory force. The Regulations, furthermore, cover each aspect of construction of residential, multi-storied, industrial, commercial, group housing, or apartment building. The term "residential unit" has been defined in Regulation 2.22, as meaning "one room, kitchen, toilet, which is used for residential purpose". The term "Residential Building" has been defined in Regulation 2.24, as meaning a building which is used generally for housing of human beings. According to list "Kha" contained in the Regulations, "more than one residential unit would be permitted on a plot between 500 sq. meter to 750 sq. meters". Thus, according to the Regulations, the petitioner is permitted to construct more than one residential unit per floor. However, the Committee in its meeting held on 15-6-2005 has restricted the construction to "a single residential unit" per floor. Hence, the decision of the Committee is contrary to the Regulations. Thirdly, a policy decision is made under a delegated power given by the Legislature to an authority. But, a delegatee cannot violate the parental statute. A policy decision, necessarily, has to be in compliance with the provisions of the law. In case, a policy decision were to violate parental Act or Regulations, the said decision would, ipso facto, be illegal. Hence, the said decision is unsustainable. Fourthly, since the letter dated 10-8-2005 is based on a decision of the Committee dated 15-6-2005 the said letter is also questionable.