HC transgressed power of legislature inreading down Sec 17(2): State SLP in SC
Panaji:
The high court of Bombay at Goa transgressed the power of the legislature by reading down Section 17(2) of the Town and Country Planning Act, 1974, said state govt in its special leave petition (SLP) before the Supreme Court.
State govt, which sought an interim stay on the judgment, also said that the high court's reading down of the provision restricts govt mechanisms to undo past errors in the regional plan efficiently.
The petition in the top court, filed around two months after the high court's order, also states that the constitutional validity of a provision can't be decided on the basis of factual considerations. It said that the high court failed to appreciate that the challenge to the constitutional validity of the Act and rules needed to be decided separately from the factual challenges contained in the PILs.
In its edition dated March 14,
TOI
reported that the high court struck down the rules and guidelines of Section 17 (2) in 'public interest', but stayed the operation of its order for six weeks. The bench, however, rejected the plea to declare Section 17(2) as unconstitutional, but made it clear that no applications for approvals under the section shall be considered.
In the SLP, state govt said, 'The manner in which a piece of legislation is implemented or applied cannot be a ground to challenge the vires of the legislation.
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Enactment of legislation is a legislative function; implementation of the legislation is an executive function, which the impugned order fails to recognise'.
The SLP further states that 'the high court transgressed into the power of the other pillar of democracy, the legislature'. 'Every state legislative body has the power and authority to define the extent of public participation and the stage at which public comments may be invited.
The TCP Act recognises that prior notification of changes and inviting public comments is not mandatory in all cases of change of plan. It is legislatively permissible to provide for post-change notification in a limited category of cases.
'
State govt also said in its petition that the high court 'misinterpreted Section 17(2) to the extent that it read down the provision, thereby curtailing the functionality of the provision and actually narrowed down and complicated a valid and effective provision which harmonised and balanced the public interest and ecosystem sensitivity of the state of Goa with private interest'.
'The high court erred in relying on material pertaining to the processing of individual applications while testing the validity of Section 17(2), that too without actually considering the individual cases on their own merits and providing an opportunity of hearing to such parties. The impugned order, thus, is violative of the principles of natural justice,' the SLP said.
The state also said that the high court, without any basis and without considering any of the individual cases, observed that almost all conversions under Section 17(2) are from paddy fields, natural cover, no development zone, and orchard to settlement zones, which has the effect of mutilating the regional plan.
The PIL in the high court had challenged the constitutional validity of Section 17(2) and told the court that arbitrary conversions are leading to rampant and unbalanced development in Goa in favour of big builders as they uniformly involve permanent destruction of hill slopes, fields and natural cover (forest), are contrary to the interest of citizens, and incompatible with ecological requirements and resources of the state.
The high court, in its 152-page order, said, '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 landowners.'
However, in the SLP before the SC, state govt said that it is 'focused on driving sustainable development by integrating green initiatives such as the green lung concept into urban planning and implementation of eco cottages with a view to integrate thoughtfully-designed open spaces that support ecological balance'. It further stated that the high court completedly failed to appreciate that the guidelines which provided guidance as to the terms 'inadvertent error' and 'inconsistent and incoherent zoning proposals' in fact outlined the narrow scope within which Section 17(2) was to operate.
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