PANAJI
In a major blow to the Goa Government, the High Court of Bombay in Goa has Read down the Rules and Regulations under the Section 17 (2) of the Town and Country Planning Act, 1974, pertaining to the zone change, while restraining the State from not granting any more permissions.
The Division Bench comprising of Justice MS Karnik and Justice Nivedita Mehta on Thursday struck down the Goa Town and Country Planning (Alteration/Modification in the Regional Plan for Rectification of Inconsistent/Inadvertent Zoning Proposals) Rules, 2023 for being “ultra vires”
The Court passed the judgment in a public interest litigation filed by the Goa Foundation, the Khazan Society of Goa, Goa Bachao Abhiyan and several other individual petitioners.
The Bench, however, has rejected the petitioners claim to declare the Section 17 (2) of the Act as “unconstitutional”. Pointing out that the government has notified RP, the bench said that RP is thus, a holistic document, which keeps in mind the aspirations of the people and overall it is in public interest.
“The relief claimed by the petitioners for declaring Section 17(2) of the TCP Act, 1974 as unconstitutional is rejected,” the order stated.
“Section 17(2), however is read down to avoid the vice of arbitrariness and hostile discrimination by interpreting the expression “inconsistent or incoherent zoning proposals” to mean ‘inconsistency or incoherence of a zoning proposal with respect to another proposal in the RP, or with respect to the Outline Development Plan; it would in no case imply change of zone of a land parcel having regard to its peculiar facts,” the Court said.
“The Goa Town and Country Planning (Alteration/Modification in the Regional Plan for Rectification of Inconsistent/Inadvertent Zoning Proposals) Rules, 2023 are struck down, being ultra vires the provisions of the Constitution and the TCP Act, thereby rendering the Guidelines for the Alteration/Modification to be carried out under Section 17(2) issued by the Town and Country Planning Department as null and void,” the Court said.
Based on the State government’s plea that it might contest the judgment in the Supreme Court, the Court has stayed its judgment for a period of six weeks.
“At this stage, Devitre, Senior Advocate for the State requests for stay of this order. Considering the nature of the challenge we stay the operation of this order for a period of six weeks. However, we make it clear that there shall be no consideration of the applications for approvals made under Section 17(2) of the TCP Act,” the Court said.
The bench made it clear that they have only considered the challenge to Section 17(2) of the Act and the 2023 Rules.
The petition has still not been disposed off and will come for hearing after four weeks.
“The whole purpose of planned development is to ensure that the planning is not haphazardly done. The RP is prepared in public interest. The whole idea in providing for zone is that the development takes place within those zones and elaborate procedure and a scientific methodology is followed in preparing the RP. The survey is a comprehensive survey. The RP may be for a particular region, which may comprise of a part of a State or a larger area so far as Goa is concerned,” the Court said.
“The RP-2021 is for the entire State of Goa. The RP for Goa is prepared bearing in mind the fragile eco-system in Goa. In respect of RP-2021, or for that matter, when a new RP is to be prepared, an elaborate exercise is carried out while proposing the zone. This passes through various layers,” it said further.
The Court observed that the Rules do not specify or give any indication as to what are the circumstances under which the inconsistent or incoherent zoning proposal needs corrections and the same is being done through guidelines.
According to the Court, as on January 2, 2025, there have been 353 approvals under Section 17(2) which affects an area of about 26,54,286 square meters
“…the applications are being filed, entertained and conversions granted for which there is no outer limit. Almost all the conversions are from paddy fields, natural cover, no development zone and orchard to settlement zones. Such plot by-plot conversion, creating a zone within a zone, virtually has the effect of mutilating the RP prepared after such an elaborate exercise,” the Court observed.
The Court was of the opinion that the 2023 Rules travel beyond the TCP Act as under the TCP Act there is no provision for delegating the power of the TCP Board whereas under the rules the Board has delegated its powers to a scrutiny committee for scrutinizing applications.
“…under Section 17(2) there is no provision for inviting public objections or calling for public comments. We therefore have no hesitation in striking down the 2023 Rules and consequently the Guidelines/Circular issued thereunder,” the Court said.
The PIL filed in 2023, had pleaded to quash and set aside the newly added Section 17 (2) of the Goa Town and Country Planning Act, 1974 which seeks to allow ad-hoc and arbitrary conversions of privately owned plots in the Regional Plan, based simply on individual applications from such parties on the grounds of alleged errors that need to be corrected in the said Plan.
The Section 17 (2) of the Town and Country Planning Act was inserted by way of an amendment to the Act on March 1, 2023 and the petitioner had challenged its constitutional validity.
Under the section 17(2) provision, the government is empowered to change “erroneously” zoned plots in the existing Regional Plan 2021 on payment of set fees and charges. The rules framed under Section 17(2) enable private individuals to file applications to seek correction of such allegedly wrong zoning of their plots in Regional Plan 2021.
