Raj Mohan Sharma vs Jaipur Nagar Nigam and Others

R.S. Chauhan, J.—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.

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.

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.

On the other hand, Mr. B. K. Sharma, the learned Counsel for the Nigam, has justified the decision of the Committee on the ground that suddenly there is spurt of construction of high-rise buildings in Jaipur, which is putting pressure on infrastructure such as drainage, water supply and electricity. Therefore, in order to control the said pressure, the Committee has rightly decided that only a single residential unit can be constructed per floor in a multi-storied residential building. Therefore, learned Counsel has justified the said decision as being in public interest and for public good. He has further contended that, likewise, the letter dated 10-8-2005 is legally sustainable. Hence, he has supported the impugned decision and the letter.

Heard learned Counsel for the parties and perused the material available on record.

Undoubtedly, the Regulations were promulgated by the JDA after invoking its power u/s 96, 32(3) and 68 of the Act. Therefore, the said Regulations have statutory force. The definitions of "Residential House" and "Residential Unit" have already been mentioned by this Court. A bare perusal of List "Kha" clearly reveals that for a plot of the size of 500-750 sq. meters certain set-back, height, FAR have been prescribed in the said list. Moreover, in the note (i) contained in the said list, it is clearly stated that "in a residential plot more than one residential unit is permitted to be constructed". Thus, the Regulations permits the construction of "more than one residential unit" per floor in a residential plot. Therefore, a person is permitted to construct more than one residential unit per floor, provided he maintains the set-back, the height and the FAR as provided in list "Kha" under the Regulations.

The Regulations establish the parameters under which a person is permitted to construct his house. Since, these parameters are statutory in nature, a Committee, which is merely a delegatee, cannot go against the parameters so established by the Regulations. For, it is a settled principles of law that a delegatee cannot take a decision contrary to parental statute. A decision, which is contrary to statutory Regulations, is, ipso facto, arbitrary, unfair and unjust. Therefore, clearly the decision taken by the Committee prohibiting construction of more than one residential unit per floor is contrary to the Regulations. Hence, the said decision is arbitrary, unjust and unfair. Thus, it is unsustainable in the eyes of law.

Even if, for the sake of arguments, it is presumed that the said decision is in public interest, but even then, the said decision does not become a legally valid decision. For, the Committee does not have the power to modify the said Regulations. Therefore, no matter how laudable the intention of the Committee may be, its decision has to conform to the Regulations. Therefore, the decision taken on 15-6- 2005 with regard to restriction imposed on the plots of the size of 500 to 750 sq. meters is legally unsustainable. Since, the letter dated 10- 8-2005 is based on the decision dated 15-6-2005, the said letter is equally unsustainable.

Man does not live by bread alone, he needs a shelter to protect himself from elements of nature. A home is also said to be a castle for the man. Therefore, the right of shelter, is not only part of human rights, but most importantly it emanates from the right to "life" and "personal liberty", enshrined under Article 21 of the Constitution of India. Of course, the said right can be controlled by a procedure established by law. However, in the present case, the decision taken by the Committee is contrary to the Regulations. Thus, both the decision dated 15-6-2005 and the letter dated 10-8-2005 are not in accordance with the procedure established by law. Hence, both the decision and impugned letter are in violation of Article 21 of the Constitution of India.

The issue whether the Nigam can grant permission for construction of highrise building has been considered before this Court in large number of cases. In case of Pink City Apartment Pvt. Ltd. v. State of Rajasthan S.B. Civil Writ Petition No. 1371/2003, decided on 25-3-2003, this Court had clearly held that notwithstanding certain directions issued by the Government, the Nigam can sanction permission in accordance with the Rules and bye-laws. The said decision was challenged by the Nigam before a Division Bench in the case of Nagar Nigam Jaipur v. Pink City Apartment Pvt. Ltd. D.B. Civil Special Appeal No. 617/2003 decided on 9-9-2004. The Division Bench of this Court directed the Nigam to sanction the building plan in accordance with bye-laws/ regulations. The said decision of the learned Division Bench has been followed consistently in other cases decided by this Court.

For the reasons stated above, the writ petition is allowed. The decision of the Committee dated 15-6-2005 is quashed and set aside, vis-a-vis plots of the size of 500 to 750 sq. meters. The letter dated 10-8-2005 is also quashed and set aside. The petitioner is directed to re-submit his map for construction of the building in accordance with the Regulations, within a period of one month. The Nigam is directed to examine the map, submitted by the petitioner, and to take a decision in accordance with the Regulations, within a period of two months thereafter. There shall be no order as to costs.