In a judgment having far reaching ecological and financial implications, the High Court of Bombay at Goa comprising Justice M.S. Karnik and Justice Ms Nivedita Mehta virtually struck down the power of the government to unilaterally alter the zoning of private plots at the request of private owners and to thus alter the sacrosanct land use notified in respect of these plots in the statutory Regional Plan for Goa 2021.
The land use changes at stake on the day of the judgment amounted to some 26.5 lakh sq mts., all allowed under a fictitious claim that the zoning of these areas was either an instance of “inadvertent error” or “incoherent/inconsistent zoning.”
What did petitioners (Goa Foundation, Goa Bachao Abhiyan and Khazan Society of Goa) ask and get in PIL WP 16/2023?
The petitioners challenged the constitutionality of the law itself (17-2 of the TCP Act, 1974). This provision, introduced into the TCP Act in 2023, enabled the Government to change the zoning of individual plots on the basis of an application made by private parties. Such applications could claim that the zoning as shown in the Regional Plan 2021 was in the nature of an “inadvertent error” or was an instance of incoherent or inconsistent zoning.
In the alternative, the petitioners pleaded for reading down the 17(2) amendment, letting it remain on the statute book, but ensuring it was disemboweled of its capacity for doing any damage to the Regional Plan.
The petition also challenged the constitutionality of the Rules notified to operate 17(2), the Guidelines which elaborated, through examples, on the meaning of the terms “inadvertent error,” and “inconsistent and incoherent zoning provisions” and the constitution of the Scrutiny Committee set up to recommend private applications for zone change.
Reading down a provision of law like Sec. 17(2) involves construing the language of the provision in a manner that limits its scope or application, making it consistent with constitutional or legal principles. So, by restricting its meaning or reading it down, the court makes it workable to salvage and save the provision from invalidation since it has been passed by an elected legislature.
In essence, the rule of reading down serves as a tool for the judiciary to strike a balance between upholding constitutional principles (Articles 14 and 21`) and respecting the intention of the legislature. This the court does by interpreting statutory provisions, in the present case, the ideas of “inadvertent error”, and terms like incoherent and inconsistent zoning.
So in its judgment, the Court has not struck down the constitutional validity of 17(2), but it has read it down, that is, reduced the scope of its application drastically by interpreting the section and what it can only mean when read within the context of Articles 14 and 21 of the Constitution and other constitutional principles. In actual fact, the provision of section 17(2) now stands mostly eviscerated.
The Court has also struck down the validity of the Rules and Guidelines notified by the Government for the purpose of implementing 17(2). Thus, in one fell stroke, all permissions granted earlier under 17(2) amounting to 26.5 lakh sq mts will fall, since the rules and guidelines under which these zone changes were made, are now quashed.
If we consider that zone changes cost the applicant Rs.1,000 per sq mt, the amount of money lost amounts to Rs.260 crore.
The Court has also held that it will not be permissible to re-zone individual plots without reference to the zoning of RP 21. This in effect means that Government cannot direct zone changes because the Government thinks that the zoning is incorrect or erroneous. Any possibility of zone change must be considered only vis-a-vis the zoning proposals in the Regional Plan itself. Applications from private parties cannot be entertained on their own merit. Further any consideration of a proposal for zone change must follow the scheme of the TCP Act. In this light, it has injuncted the Goa government from entertaining any further applications or granting any further approvals under 17(2). The court in fact has conclusively held that changes under Section 17(2) cannot be in public interest.
One more significant decision of the Court is to quash and set aside the work of the Scrutiny Committee, which purportedly examined 17(2) proposals and applications. The court has held that the TCP Board did not have the statutory power to set up such a committee and delegate its powers to it.
It is on the request of the state government’s counsel that the High Court has stayed the operation of its order for 6 weeks, in order to enable the state government to appeal the order before the Supreme Court. But not without bringing to complete halt any further zone changes under Sec. 17/2 in the State of Goa.
Extracts:
“It cannot be forgotten that a change of zone directly has an effect on a planned development and that too in respect of an ecosystem which is as fragile as Goa. The environmental concerns in a region like Goa which has 54.06% (188,59,43,700 m²) of ECO zone-1 and 26.29% (116,34,42,300 m²) of ecozone-2 will have to far outweigh the interest of private owners.” [18.6]
“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 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. Surveys are conducted by the CTP. The Board makes it’s recommendations and public comments are invited. The Government notifies the RP. The RP is thus, a holistic document, which keeps in mind the aspirations of the people and overall it is in public interest.” [21]
“The 2023 Rules confer unfettered and unguided authority on the Executive to interpret what is meant by an inadvertent error or what is an inconsistent/incoherent zoning proposal. There is no guidance in the 2023 Rules itself as to what is an ‘inadvertent error or incoherent or inconsistent zoning proposals’. The power is open-ended. The Act or the Rules do not prescribe any guidance for exercising such power. There is no doubt that the inadvertent errors can be corrected and even the petitioners say so, but cannot be expanded to the extent prescribed by the Guidelines. We are satisfied that the manner in which the rules are framed and the circular issued is not in furtherance of a development in public interest by maintaining a balance between sustainable development viz-a-viz the environmental issues, but is concerned with the interest of private land owners. For example, since it is a matter of record and even according to the State, as on 02.01.2025, there have been 353 approvals under Section 17(2) which affects an area of about 26,54,286 square meters. This may be a minuscule percentage as contended by Mr. Devitre, learned Senior Advocate appearing for the State, but 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.” [22]