By Joaozinho da S.F.A. Martins*

What, essentially, pushed the Goa Government in 2011 to delete the original Regulation 5(f) from the Goa Land Development and Building Construction Regulations 2008/2010, and, also to make Amendment No.32 by Insertion of Note 16 in the Regulation 6A.4 of 2010? What public concerns of common interest impelled the Government to introduce these changes? And were these changes approved by the Legislature in any prior Legislative Assembly Session?

Good governance, of which Governments boast about, requires that “Every State action be informed by reason and it follows that an act uninformed by reason, is arbitrary.” That is, “The constitutional power conferred on the Government cannot be exercised by it arbitrarily or capriciously or in an unprincipled manner; it has to be exercised for the public good. Every activity of the Government has a public element in it and it must therefore, be informed with reason and guided by public interest. Every action taken by the Government must be in public interest; the Government cannot act arbitrarily and without reason and if it does, its action would be liable to be invalidated (Ravi Kant, Advocate, Supreme Court of India)”.

The above-referred changes are wholly unwarranted, not of public interest, but only aimed to fulfill the Builders’ interests. Both are unreasonable, arbitrary actions of the Government. And, “Any such illegal, irrational or arbitrary actions or decisions, whether in the nature of legislative, administrative or quasi-judicial exercise of power are liable to be quashed being violative of Article 14 of the Constitution (AIR 1990 SC 1402)”. 

The contentious facts are these: as per Regulation 5(f) of 2008, once a Group Housing Project in an area of 20,000 m2 was completed, it was required that any remaining area exceeding 20,000 m2, be sub-divided into plots for any further development. And, for any further sub-divisions, it would require that there be first an access of 10 metres wide in keeping with Regulation 12.5 (c) of 2008 and as per the Regional Plan 2021. Undeniably, this technical hurdle has been done away with, by replacing the earlier Regulation 5(f) of 2008 with a new Regulation 5(f) in 2011, in which the need for access road is subtly ignored.

Next, Insertion of Note 16 in Regulation 6A.4 of 2010 only aims to help Builders to erect concrete jungles at the cost of ignoring the public need for an appropriate access road. Thus “Note 16” is an abject abuse of discretion in which not only requisite 10-metre-wide access road is reduced to 6-metre-wide, but any bottleneck less than 75 metres along the same road can be blatantly ignored.

At the moment, it can be confidently argued that the arbitrary deletion of the original Regulation 5(f) of 2008 and of the Insertion of Note 16 in the Regulation 6A.4 of 2008/2010 are meant to serve the vested interests of M/s. Raheja Universal Pvt. Ltd. After all, the changes did away with the earlier 10-metre-wide access required to form further sub-divisions of any remaining area above 20,000 m2. Subsequently, Rahejas opted for amalgamation of the earlier sub-divisions made; and, strangely qualify for Group Housing Project without requiring any 10-metre-wide access road.  Instead, permission could be now given if only 6-metre-wide access road is available, irrespective of the resulting traffic congestion involved. Furthermore, bottleneck of 73 metres in length along the available access road in Carmona was to be ignored in issuing Permission. As such, the unjust Insertion of Note 16 has been prompted by circumstances that earlier made it unwieldy for the Rahejas to get Technical Clearance for their Construction Projects.

The impugned arbitrary changes are certainly perverse and even ignore the Bombay High Court Orders in the Writ Petitions No. 372 of 2009 and No. 843 of 2010 directing the State to ensure appropriate access roads. Consequently, the problems predisposed to cause the Villagers concerned and overlooked by the Government are inevitable; unless, of course, the changes are quashed through timely Judicial Intervention or Activism by the State’s Judiciary.

Given the Government apathy and the abysmal failure of the Activists to secure justice, Judicial Activism remains the one and only hope in securing justice. “Judicial Activism can best be described as judicial decision-making that is guided by the personal decisions or political interests of the individual judges relating to public issues of common interest. For example, instead of strictly applying the law, more so when the law only seeks to cater the private interests of a few, the judges make a decision which also includes their own stance on the issue they are deciding in the case” under consideration, in the cause of Public Interest.

The Judiciary needs to benevolently intervene when the Common Man is unable to seek justice on his own. The Judiciary, therefore, needs to arbitrate and quash the arbitrary actions of the State. “It has been emphasized time and again that arbitrariness is anathema to State action in every sphere and wherever the vice percolates, no Honorable Court should allow itself to be impeded by technicalities to trace it and strike it down. This is the surest way to ensure the majesty of rule of law guaranteed by the Constitution of India” (Adv. Ravi Kant).

Judicial Activism, therefore, remains the only major pertinent hope of the Common Man to reclaim lost uniformity and get satisfactory justice and fair treatment, when justice and fairness are denied by those in power.

*The Author is a Free-Lance Writer from Orlim, Salcete, Goa



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