Staff Reporter
Panaji
The High Court of Bombay at Goa on Thursday struck down the rules and guidelines that enabled the operation of Section 17(2) of the Town and Country Planning (TCP) Act, 1974.
The High Court also read down Section 17(2), pertaining to zone change. The court, however, stayed operation of the order for a period of six weeks at the request of the state government. The court has directed the state not to grant any further permissions for now.
The High Court division bench comprising Justice M S Karnik and Justice Nivedita P Mehta 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 of 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 vide circular no 21/1/TCP/GTCPACT/ 2023/987 dated 27.03.2023 null and void.”
The High Court also said that the relief claimed by the petitioners for declaring Section 17(2) of the TCP Act as unconstitutional is rejected.
The court said Section 17(2) 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 Regional Plan 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 High Court heard several petitions related to re-zoning. The petitioners, in public interest, challenged the constitutional validity of Section 17(2), introduced by the Goa Town and Country Planning (Amendment) Act, 2023, which came into force on March 1, 2023.
Also under challenge is the Goa Town and Country Planning (alteration/modification in the Regional Plan for rectification of inconsistent/inadvertent zoning proposals) Rules, 2023, made on the grounds that they are violative of Article 14 and Article 21 of the Constitution of India.
The petitioners contested the re-zoning of individual plots, arguing that this process violates the principles of planned development under the TCP Act.
The High Court said, “Nonetheless, keeping in mind the fragility of the ecosystem of Goa, we cannot ignore the materials placed before us demonstrating the way power is being exercised. The proof of open-endedness of such expression is to be found in the way the executive has been exercising powers under Section 17(2). The TCP has been allowing applications of individual plot owners to change the zone of their land under Section 17(2). If the threshold of ‘inconsistent or incoherent zoning proposals’ is considered so inclusive as to even allow modification of an approved and notified Regional Plan by changing use of land parcels within a zone, several anomalies ensue.”
The High Court said that Section 17(2) completely dilutes the mandate of the TCP Act. “Section 17(2) does not at all take into consideration the interest of the community as a whole but is guided by applications made at the behest of private owners for zone changes,” the court said.
The counsel for the petitioners argued that the Section 17(2) confers an unbridled, unfettered power on the government to alter/modify the RP under the guise of correcting inconsistent /incoherent zoning proposals and inadvertent errors, without adhering to the procedure prescribed under sections 11 to 14 and 17 of the TCP Act, 1974.
On the other hand, counsel for the TCP contended that: Section 17(2) of the TCP Act introduced by way of amendment is entirely consistent with the Act and has a clear nexus with its purpose as also with the very subject of the amendment that was intended to deal with a situation arising from inadvertent errors or incoherent and inconsistent zoning in a RP. It serves a legitimate purpose of correcting apparent errors that may have crept into the RP on the basis of which the entire development of the State is planned.
