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Dr. Mir Asgar Husain vs The State Of Telangana on 16 September, 2019

THE HON’BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN
AND
THE HON’BLE DR. JUSTICE SHAMEEM AKTHER

WRIT PETITION (PIL) Nos. 79 OF 2019 AND 86 OF 2019

COMMON ORDER: (Per the Hon’ble the Chief Justice Raghvendra Singh Chauhan)

The looming threat of demolition of a 150 years old

palace, Irrum Manzil, due to the decision of the Council of

Ministers on 18.06.2019, to construct a new legislative

complex at the site of the palace, has agitated the people of

Hyderabad. For, the proposed construction of the legislative

complex would be possible only with the demolition of the

palace. Proud as people are of their heritage and culture of

the beautiful city of Hyderabad, eight Public Interest

Litigation (‘PIL’) writ petitions have been filed, challenging

the said decision, before this Court.

2. Writ Petition (PIL) No. 86 of 2019, and Writ Petition

(PIL) No. 79 of 2019, which have challenged the proposed

demolition of the Irrum Munzil, shall be dealt with herein

under. For, the most meaningful arguments have been

raised by both the parties in these two writ petitions. The

other writ petitions, namely W. P. (PIL) Nos. 64, 65, 73, 75,

and 80 of 2019 shall be decided separately, but in light of

the decision of these two writ petitions. The W.P. (PIL) No.

81 of 2019 shall also be decided separately altogether, as
2

the petitioner therein has not only challenged the proposed

demolition of the Irrum Manzil, but has also questioned the

constitutional validity of the Telangana Heritage

(Protection, Preservation, Conservation and SectionMaintenance)

Act, 2017 (“the Act, 2017”, for short).

Brief glimpse of the past and the present:

3. Trained as an architect, in 1870, Nawab Safdar

Jung Musheer-ud-Daula Fakhrul-Mulk designed and

constructed a 150 room palace for his family. The palace

is sprawled over 36 acres, 36 guntas on top a hillock

known as “Erragadda” or “red hill” in Telugu language.

The word “Errum” means the colour ‘red’ in Telugu; the

word “Iram” means ‘paradise’ in Persian. In order to

emphasize the phonetic similarity between the two words,

and in order to highlight the commonality of the Hindu and

Islamic cultures, Nawab Safdar Jung Musheer-ud-Daula

Fakhrul-Mulk named the palace as “Iram Manzil”.

Originally, the palace was even painted red in order to

underline the Telugu word, “Erram”. Presently, the building

is called “the Irrum Manzil”.

4. The Irrum Manzil is a unique combination of the

Deccani, the Rajasthani, and the European Baroque

architecture. The palace is famous for its stucco

ornamentations. It is claimed that the palace was originally
3

furnished with Louis XVI furniture. The palace not only

had a nine-hole golf course, but also had a polo ground,

stable for horses, and even a dairy farm. Initially the

palace used to overlook the Hussain Sagar Lake. But

presently, due to urban construction, the view is blocked.

5. At its height, the palace had seen the

strengthening of relationship between the Nizam of

Hyderabad and the British. The palace had hosted

dinners and lavish events for the British nobility, in

general, and for the British Resident at Hyderabad, in

particular. Thus, the building is not only a part of the

history of the Nizams of Hyderabad, but is equally a part of

the colonial past of our country.

6. Furthermore, it is not only the palace which

reflected the pluralistic ideology and lifestyle of the Nawab,

but the family itself was known for celebrating Hindu and

Muslim festivals alike. Thus the Irrum Manzil is an

important milestone in the history of Nizam Kingdom. It

symbolises the very spirit and ethos for which Hyderabad is

well-known, namely as a city of confluence of various

traditions, cultures, civilizations, which peacefully co-exist

and generously acknowledge the contributions made by

each other. Thus, the palace reflects the plurality, the
4

multi-dimensionality of our people, and the concept of

unity amongst diversity.

7. But with the afflux of time, the palace deteriorated

in its condition, and declined in its importance. Abandoned

and forlorn, it stands as a mute testimony of a glorious era

of history of Hyderabad. Eventually, on 25.06.1951 the

palace was taken over by the State Government. Although

the petitioners claim that presently, Irrum Manzil houses

the offices of Public Works Department, Roads Buildings

Department, Irrigation and Command Area Development

(ICAD), the respondents have denied the said fact.

According to the respondents, due to its dilapidated

condition, the palace can no longer be used by the

government departments.

Fast-forward to the present:

8. With the bifurcation of Andhra Pradesh, on

02.06.2014, the State of Telangana came into existence.

But despite the bifurcation, both the States treated

Hyderabad as a common Capital. Therefore, initially the

present Legislative Assembly building, situated at the

Public Gardens, Nampally, was jointly used by both the

States. However, subsequently in March, 2017 the State

of Andhra Pradesh vacated its possession of the legislative

complex at Nampally. Ever since then, the legislative
5

complex, sprawled over Ac.11.00 gts. of land, is being used

by the State of Telangana.

9. However, on 18.06.2019, the Council of Ministers

held a meeting; the Council of Ministers decided to

construct a new legislative complex at the Irrum Manzil.

The integrated legislative complex will have “designated

residential accommodation for the Chairman/Speaker,

Deputy Chairman/Deputy Speaker and Legislative

Secretary”. On 19.06.2019, the said decision of the

Cabinet was highlighted by the media, both electronic and

print. Since the legislative complex could not be

constructed without the demolition of the Irrum Manzil, a

section of the people of Hyderabad were agitated over its

possible demolition. Hence, eight Writ Petitions (PIL) were

filed, over the course of two weeks, for challenging the

decision of the Cabinet dated 18.06.2019

10. In order to fully understand the complexity of the

issues raised before this Court, it is essential to first

understand the numerous laws, which deal with the

protection of “historical monuments, historical sites,

archaeological sites, heritage buildings and heritage sites”,

on the one hand, and to deal with different laws, which

concern “the urban development and urban planning”, on

the other hand.

6

11. Undoubtedly, Indian civilization is a continuum of

5,000 years. During these five millennia, different people,

different civilizations have come, conquered, and settled in

this land. They have left their footprints in the sand of time

as testimonies of their culture, and of their achievements.

Realising the need to preserve the historical monuments

and archaeological sites, even the English had enacted the

SectionAncient Monuments Preservation Act, 1904.

12. Keenly aware of the rich history of our country,

our Founding Fathers had placed specific Entries in the

different Lists of the Seventh Schedule of the Constitution

of India, for conservation and preservation of historical

monuments and archaeological sites: Entry 67, List I; Entry

12, List II; Entry 40, List III of the Seventh Schedule of the

Constitution of India. Consequently, the Parliament has

enacted the Ancient Monuments and Archaeological Sites

and Remains Act, 1958 (‘the Act, 1958’, for short). SectionThis Act

deals with ancient monuments and archaeological sites of

“national importance”.

13. Similarly, in order to protect and conserve the

numerous historical monuments dotting the landscape of

the State, the former State of Andhra Pradesh enacted the

Andhra Pradesh Ancient and Historical Monuments and
7

Archaeological Sites and Remains Act, 1960 (‘the Act,

1960’, for short).

14. In fact, after the State of Telangana came into

existence, the State has enacted the Act, 2017. The said

Act not only deals with historical monuments and

museums, but also deals with “heritage buildings”,

“heritage sites”, and natural heritage sites, such as

boulders and rocks. Thus, it is a comprehensive law

dealing with protection, conservation, and restoration of

historical monuments and heritage buildings.

15. On the other hand, in order to regulate,

supervise, and control the development of urban areas, in

1975, the former State of Andhra Pradesh enacted the

Andhra Pradesh Urban Areas (Development) Act, 1975 (‘the

Urban Areas Act’, for short).

16. Well aware of the existence of historical

monuments and sites, which fall within numerous cities,

wanting to conserve and preserve these monuments and

sites, Section 39 of the Urban Areas Act clearly stipulated

that “the Government shall constitute an Urban Art

Commission”. One of the functions of the Urban Art

Commission was “to preserve and conserve historical

monuments and historical sites, which fall within the limits

of urban areas”. In order to give teeth to the Urban Art
8

Commission, the Government had even promulgated the

Urban Art Commission Rules, 1978, by G.O. Ms. No. 312,

Housing MA UD Department (MA), dated 06.05.1987.

17. Moreover, Section 59 of the Urban Areas Act

empowers the Urban Development Authority to promulgate

regulations consistent with the Act and the Rules made

there under.

18. Hyderabad, the capital of the State, had to be

planned for the future needs of the city and of the State.

Therefore, invoking its power under Section 59 of the

Urban Areas Act, on 11.08.1981, the Hyderabad Urban

Area Development Authority (“HUDA”, for short)

promulgated the Bhagyanagar (Hyderabad) Urban

Development Authority Zoning Regulations, 1981 (“the

Zoning Regulations, 1981”, for short). However, the Zoning

Regulations, 1981 did not contain any provision for

protecting, preserving and conserving the historical

monuments sprinkled across Hyderabad. Therefore, while

invoking its power under Section 59 of the Urban Areas

Act, on 14.12.1995, HUDA framed and incorporated

Regulation 13 within the Zoning Regulations, 1981. The

said Regulation 13 was approved by the Government by

G. O. Ms No. 542 dated 14.12.1995.

9

19. The Regulation 13 of the Zoning Regulations,

1981 was “brought into force for the purpose of conserving

the buildings, artefacts, structures and/or precincts of

historical and/or aesthetical and/ or architectural and/or

cultural value, which were referred to as “Heritage Buildings

and Heritage Precincts”. Regulation 13 (2) of the Zoning

Regulations, 1981 prescribes that the government should

constitute a Heritage Conservation Committee (‘the

Committee’, for short). Regulation 13 (3) imposes a duty

upon the Committee to identify the “heritage buildings”

which need to be protected by the Government. Relying on

the recommendation of the Committee, by G. O. Ms. No.

102, dated 23.03.1998, the Government had notified and

declared 137 buildings within Hyderabad as “heritage

buildings”. One of the buildings, so notified and protected

as “heritage buildings”, is the Irrum Manzil. It is mentioned

at serial No.47 of the list attached to the notification.

Subsequently, by G. O. Ms. No.185, dated 22.04.2006,

fourteen more buildings were added to the list. Thus, in

total, 151 buildings were declared as “protected heritage

buildings” within the city of Hyderabad.

20. Moreover, Regulation 13 (2) of the Zoning

Regulations, 1981 prohibits the demolition of a heritage

building without the prior written permission of the Vice-
10

Chairman, HUDA (presently, the Commissioner, Hyderabad

Metropolitan Development Authority, ‘the HMDA’, for

short). According to the said Regulation, the vice-

chairman, HUDA has to act on the advice of the

Committee. Therefore, Regulation 13(2) of the Zoning

Regulations, 1981 prescribes the procedure, established by

law, for demolition of a heritage building.

21. Subsequently, considering the fact that the city of

Hyderabad had grown into a Metropolitan City, the

Hyderabad Metropolitan Development Authority Act, 2008

(‘the HMDA Act’, for short) was brought into force. The

HMDA Act constituted HMDA. With the coming of HMDA

into existence, HUDA was abolished. But the provisions of

the Urban Areas Act and HMDA Act are similar to each

other. Section 34 of the Urban Areas Act empowers the

government to control the functioning of HUDA; Section 49

of the HMDA Act, likewise empowers the government to

control and issue directions to HMDA for the

implementation of the Act. Moreover, under Section 59 of

the Urban Act, HUDA was empowered to formulate the

Regulations; under Section 57 of the HMDA Act, the HMDA

is similarly empowered to frame the regulations. Hence,

after 2008, the HMDA is empowered to frame the Master

plans, Zonal plans, and the Zoning Regulations.
11

22. Consequently, in 2010, HMDA formulated the

Metropolitan Development Plan along with the Land Use

Zoning Regulations with regard to the core area of HMDA–

that is the area within the Ring Road of the city.

(Henceforth, while the Metropolitan Development Plan shall

be referred to as “Plan, 2010”, the regulations shall be

referred to as “the Zoning Regulations, 2010”, for short). On

21.8.2010, the government sanctioned the Zoning

Regulations, 2010.

23. Regulation 2 of the Zoning Regulations, 2010

demarcated different zones of the Hyderabad city, e.g. the

residential, the commercial, the industrial zones etc.

Interestingly, keeping in mind the existence of “heritage

buildings” which were already declared to be protected by

the government, Regulation 2 of the Zoning Regulations,

2010 created a particular zone, namely “the Special

Reservation Use Zone”.

24. More pertinently, Regulation 9 (A)(ii) Zoning

Regulations, 2010 provided that Regulation 13 of the

Zoning Regulations, 1981 and other relevant orders or

amendments issued by the government from time to time

shall be applicable. Most importantly, the site of Irrum

Manzil was earmarked in the map of Plan, 2010 as falling

within the Special Reservation Zone.

12

25. Considering the fact that Hyderabad had to be

developed further, beyond the Ring Road, on 24.1.2013 the

government sanctioned the Metropolitan Development Plan

2031, along with the Zoning and Development Promotion

Regulations, 2013 (henceforth, referred to as the “Zoning

Regulations, 2013”). Regulation 1.1.10 of the Zoning

Regulations, 2013 delineates Special Reservation Zone

which includes the “heritage buildings and heritage

precincts”. Most importantly, Regulation 1.11.1 of the

Zoning Regulations, 2013 provides that the Heritage

Regulations issued vide G. O. Ms. No. 542 (Regulation 13

of Regulations, 1981) and other relevant orders and

amendments issued by the government from time to time

shall be applicable.

26. Therefore, presently, both the Plan, 2010 and

Plan, 2013 co-exist. While the former deals with the

Hyderabad city within the Ring Road, the latter deals with

the Hyderabad metropolitan region beyond the Ring Road.

It is pertinent to note that Regulation 13 of the Zoning

Regulations, 1981 is mentioned both in Regulation 9(A)(ii)

of the Zoning Regulations, 2010, and in Regulation 1.11.1

Zoning Regulations, 2013.

27. Although numerous arguments were raised with

regard to Regulation 1.11.1 of Zonal Regulations, 2013, but
13

they need not concern us. For, Zonal Regulations, 2013 is

concerned with development area of Hyderabad beyond the

ring road, whereas Irrum Manzil falls within the ring road.

Thus, the area of Irrum Manzil is covered by Regulation

9(A) of Zonal Regulations, 2010. Hence, while referring to

different arguments qua Regulation 13 of the Zonal

Regulations, 1981, this court will refer to only Regulation

9(A) of Zonal Regulations, 2010.

28. For the purpose of this judgment, it is essential to

note that while Regulation 13 of the Zoning Regulations,

1981 was framed under Section 59 of the Urban Areas Act,

it is mentioned in the Zoning Regulations, 2010. Hence,

while discussing different aspects of Regulation 13 of the

Zonal Regulations, 1981, the Court would be referring to

the Urban Areas Act, to the HMDA Act, and to the Zoning

Regulations, 2010.

29. However, being of the opinion that Regulation 13

of the Zoning Regulations, 1981 is inconsistent with and

ultra vires the Urban Areas Act, 1975, on 7.12.2015, by

G.O.Ms. No.183, the State deleted Regulation 13 of the

Zoning Regulations, 1981 “from its very inception”.

30. Further, being of the view that with the repeal of

Regulation 13 of the Zoning Regulations, 1981 in 2015, the

Irrum Manzil has lost its status as “a protected heritage
14

building”, and wanting to construct a new legislative

complex for the new State of Telangana, on 18.06.2019, the

Council of Ministers decided to construct a new legislative

complex at the Irrum Manzil. Hence, different writ

petitions have been filed for challenging the decision of the

Cabinet dated 18.06.2019, before this Court, as mentioned

hereinabove.

Writ Petition (PIL) No.86 of 2019

31. Mr. D. Prakash Reddy, the learned Senior

Counsel for the petitioner, while narrating the factual

matrix mentioned hereinabove, has raised the following

contentions before this Court:-

Firstly, Section 59 of the Urban Areas Act empowers

the Urban Development Authority to frame regulations.

The regulations need to be approved by the government.

However, the power to promulgate the regulation is vested

only with the Urban Development Authority, and not with

the government.

Secondly, Regulation 13 of the Zoning Regulations,

1981 was framed by HUDA by invoking its power under

Section 59 of the Urban Areas Act. Subsequently, it was

approved by the government. Therefore, Regulation 13 of

the Zoning Regulations, 1981 is a statutory regulation

having the force of law.

15

Thirdly, Regulation 2 of Zoning Regulations, 2010

clearly divides Hyderabad city into different zones. The

said regulation clearly mentions that “the protected

heritage buildings” would fall within the Special

Reservation Zone. Further, Regulation 9(A)(ii) of the Zoning

Regulations, 2010 clearly mentions Regulation 13 of the

Zoning Regulations, 1981. Therefore, Regulation 13 of the

Zoning Regulations, 1981 is “legislation by way of

incorporation” in the Zonal Regulations, 2010.

Fourthly, Regulation 9(A) (ii) of Zoning Regulations,

2010 can easily be bifurcated into two parts: the first part

mentions Regulation 13 of the Zoning Regulations, 1981;

the second part speaks of “the orders/amendments issued

by the government from time to time”. Since the government

does not have the power to amend the regulations issued

under Section 59 of the Urban Areas Act, obviously, the

words “orders/amendments issued by the government from

time to time” do not refer to the repeal of Regulation 13 of

the Zoning Regulations, 1981. Instead, the words refer to

the amendment, which may be brought by the government

in the list of protected heritage buildings or sites, issued by

the government. Therefore, the subsequent repeal of

Regulation 13 of the Zoning Regulations, 1981 would not

delete the incorporation of Regulation 13 of the Zoning
16

Regulations, 1981 in Regulation 9(A)(ii) of the Zoning

Regulations, 2010. For, it is settled principle of law that

when a provision is incorporated from one enactment to

another, it becomes an integral part of the latter enactment

as if it was written afresh in the latter enactment.

Therefore, the provision so incorporated has to be adjudged

with reference to the scheme and purpose of the latter

enactment. The provision so incorporated gets completely

de-linked from the former enactment. Thus, any change in

the former enactment does not adversely affect the

provision so incorporated in the latter enactment. In order

to buttress this plea, the learned Senior Counsel has relied

on the case of SectionGauri Shankar Gaur v. State of U.P.1.

Fifthly, since Regulation 13 of the Zoning Regulations,

1981 is squarely covered under Regulation 9(A)(ii) of the

Zoning Regulations, 2010, the former is also a part of a

statutory regulation. Hence, it has the force of law.

Therefore, the procedure established by Regulation 13 of

the Zoning Regulations, 1981 would necessarily have to be

followed if any heritage building were to be demolished.

According to Regulation 13 of the Zoning Regulations,

1981, before a heritage building can be demolished, a

written permission from the HUDA/HMDA has to be taken.

1
(1994) 1 SCC 92
17

In turn, HUDA/HMDA is required to seek the advice of the

Committee. The advice of the Committee is binding on the

HUDA/HMDA. It is only after seeking the advice of the

Committee that the HUDA/HMDA is permitted to grant its

permission, but that too in writing.

Sixthly, since the heritage building falls under the

Special Reservation Zone, any modification of the land use

of a Special Reservation Zone necessarily has to follow the

requirement of the Zoning Regulations, and the

requirement of the HMDA Act. Section 15 of the HMDA

Act, while bestowing the power upon the government to

modify the Metropolitan Development Plan, prescribes a

procedure for modification of the Development Plan.

However, in the present case, the government has neither

taken any written permission from HMDA, nor followed the

procedure prescribed under Section 15 of the HMDA Act.

Instead, it has taken a unilateral decision of demolishing

Irrum Manzil and in constructing the legislative complex.

Therefore, the impugned Cabinet decision is in

contravention of Regulation 13 of the Zoning Regulations,

1981. Furthermore, since the land use is being changed,

the impugned decision is in violation of Regulation 9(A)(ii)

of Zoning Regulations, 2010, read with Section 15 of the

HMDA Act. Therefore, the decision of the Cabinet is in
18

violation of various provisions of law: it is an arbitrary

decision. It is, thus, legally unsustainable.

Seventhly, it is, indeed, a settled position of law that

what cannot be done directly, cannot be permitted to be

done indirectly. However, the government is trying to

modify the Plan, 2010 by surreptitious means of taking a

Cabinet decision for construction of a legislative complex.

Lastly, when Regulation 13 of the Zoning Regulations,

1981 was repealed by the government in 2015, a Public

Interest Litigation writ petition was filed before the former

High Court of Judicature at Hyderabad for the State of

Telangana and the State of Andhra Pradesh, namely W.P.

(PIL) No. 360 of 2015 challenging the said repeal. In the

said writ petition, on 21.12.2015, the learned Advocate

General had given an undertaking that “no protected

heritage building would be demolished till the next date of

hearing”. The said order was extended on 25.01.2016,

22.01.2016, and finally to 28.03.2016. On 28.03.2016, the

said undertaking was extended till further orders.

Moreover, on 18.04.2016, the Hon’ble High Court had

clearly ordered that “no structure declared as heritage

building under Regulation 13 of the Zoning Regulations,

1981 shall be altered or demolished without the permission

of the Court”. The said writ petition is still pending before
19

this Court. Therefore, the order dated 18.04.2016 is still

operational. But despite the fact that the said order

requires the government to seek the permission of the

Court, no such permission has been sought by the

government prior to taking the decision on 18.06.2019 by

the Cabinet. Therefore, the impugned decision of the

Cabinet violates the order dated 18.04.2016 passed by the

learned Division Bench in W.P. (PIL) No.360 of 2015.

32. On the other hand, Mr. J. Ramchandra Rao, the

learned Additional Advocate General (‘the AAG’, for short),

has raised the following counter-contentions before this

Court:-

Firstly, the Urban Areas Act naturally dealt with

urban planning and development. While it may have

contained a provision, such as Section 39, for protecting

archaeological and heritage sites, it did not contain any

provision for protection, preservation and conservation of

“heritage buildings” and “heritage sites”.

Secondly, the Urban Areas Act flows from, and is

covered by Entry 5, List-II of the Seventh Schedule of

Constitution of India, dealing with “Local Government,

Municipal Corporations, Improvement Trusts etc”.

However, Regulation 13 of the Zoning Regulations, 1981

emanates from Entry 12, List-II of the Seventh Schedule of
20

Constitution of India, namely dealing with “ancient and

historical monuments”. Therefore, the Urban Areas Act,

and the Regulation 13 of the Zoning Regulations, 1981

originate from two different entries of List-II of the Seventh

Schedule of the Constitution of India. According to the

learned counsel, a law can emanate only from a single

Entry, and not from multiple Entries of List II of the

Seventh Schedule to the Constitution of India. Therefore,

as Regulation 13 of the Zoning Regulations, 1981 emanates

from a different Entry, it could not form part and parcel of

the Urban Areas Act. Thus, there is a constitutional

mismatch. Hence, the government was well justified in

concluding that Regulation 13 of the Zoning Regulations,

1981 is inconsistent with, and ultra vires the Urban Areas

Act. Therefore, it was justified in repealing Regulation 13

of the Zoning Regulations, 1981 “from its very inception”.

Thirdly, by letter dated 16.04.2015, the HMDA had

clearly requested the government to repeal Regulation 13 of

the Zoning Regulations, 1981. Therefore, the government

had repealed the said regulation only at the instance of the

HMDA.

Fourthly, Section 34 of the Urban Areas Act bestows a

power on the government to issue directions to the

authority for the efficient administration of the Act. In
21

fact, according to Section 34(1) of the Urban Areas Act, the

authority is legally bound to carry out such directions

issued by the government. Thus, even under Section 59 of

the Urban Areas Act, the government does have both the

power to frame, and the power to repeal the regulations.

Hence, the repeal of Regulation 13 of the Zoning

Regulations, 1981 is legally valid.

Fifthly, the learned counsel has vehemently opposed

the argument that the reference to Regulation 13 of the

Zoning Regulations, 1981 made in Regulation 9 (A) (ii) of

Zoning Regulations, 2010 is by way of “incorporation”.

According to the learned counsel, the legislation is by

“reference”, and not by “incorporation”. Moreover, one of

the major differences between a “legislation by reference”

and “legislation by incorporation” is that in the former, the

repeal of the provision from the original Act in which the

provision is contained, would also automatically delete the

provision in the second Act, where the provision has been

referred. But such is not the position, when it is

“legislation by incorporation”. Since the Regulation 13 of

the Zoning Regulations, 1981 is “legislation by reference”,

its repeal from the Zoning Regulations, 1981 would

automatically delete its “reference” in Regulation 9 (A) (ii) of

Zoning Regulations, 2010. Therefore, the protection
22

granted to Irrum Manzil under Regulation 13 of the Zoning

Regulations, 1981 no longer exists.

Sixthly, the present legislative complex situated at

Public Gardens, Nampally is insufficient for the needs of

the government and the legislature. For, it neither has a

hall for holding a joint session of the Legislative Assembly,

and of the Legislative Council, nor has the requisite

number of the offices. Moreover, there is no residential

accommodation for the Speaker of the Legislative Assembly,

or for the Chairman of the Legislative Council, or for the

Deputy Speaker, or the Deputy Chairman. Because of the

inadequacy of the present legislative complex, a dire need

exists for the construction of a new legislative complex at

the Irrum Manzil.

Lastly, the scope of judicial review of policy decision is

extremely limited. While the Court can examine the

decision making process, the Court cannot substitute the

decision of the government by its decision. For, the Court

does not sit as an appellate authority over the decision of

the government. In order to buttress this plea, the learned

AAG has relied upon the cases of Janhit Manch through

its President Bhagvanji Raiyani v. State of Maharastra2,

2
(2019) 2 SCC 505
23

SectionJal Mahal Resorts Private Limited v. K.P. Sharma3, and

Union of India v. Kannadapara Sanghatanegala Okkuta

Kannadigara4. Since the Cabinet has taken a decision

in accordance with law, and while keeping the present and

the future requirements of a legislative complex, the

Cabinet decision dated 18.06.2019 is legally valid.

Therefore, the PIL writ petitions, filed by different

petitioners, deserve to be dismissed by this Court.

33. In rejoinder, Mr. D. Prakash Reddy, the learned

Senior Counsel, has submitted the following arguments:-

Firstly, although the petitioner is not challenging the

repeal of Regulation 13 of the Zoning Regulations, 1981 per

se, but as the repeal has been justified by the respondents,

the petitioner is entitled to question the said justification.

Therefore, the learned Senior Counsel has raised certain

arguments against the repeal of Regulation 13 of the

Zoning Regulations, 1981 which are as under:-

(a) As mentioned hereinabove, Section 59 of the

Urban Areas Act bestowed the power to formulate the

regulations only on the Urban Development Authority, and

not on the government. Even Section 34 of the Urban

Areas Act does not support the case of the respondents.

For, Section 34 of the Urban Areas Act permits the

3
(2014) 8 SCC 804
4
(2002) 10 SCC 226
24

government “to issue directions to the Urban Development

Authority for efficient administration of this Act”. But, these

words do not bestow the power upon the government to

repeal a regulation, which was promulgated by the Urban

Development Authority. Therefore, once the power to

promulgate a regulation is given to the Urban Development

Authority, the government cannot usurp the power in the

garb of Section 34 of the Urban Areas Act. Moreover,

admittedly, Regulation 13 of the Zoning Regulations, 1981

has been repealed by the government, and not by the

Urban Development Authority. Therefore, the repeal is

contrary to the Section 59 of the Urban Areas Act.

(b) Relying on the cases of Manohar Lal v.

SectionUgrasen5, Chandrika Jha v. State of Bihar6, SectionBangalore

Medical Trust v. B.S. Muddappa7, and SectionState of Punjab v.

Hari Kishan8, the learned Senior Counsel has pleaded that

once a statute confers a power on a particular authority to

do something, only the said authority can exercise the

power. No other authority, even a superior or a higher

authority, can exercise that power. Therefore, once Section

59 of the Urban Areas Act bestows the power to frame the

regulations, or to repeal the regulations only upon the

5
(2010) 11 SCC 557
6
(1984) 2 SCC 41
7
(1991) 4 SCC 54
8
(1966) 2 SCR 982
25

Urban Development Authority, the government, although a

superior authority, could not repeal Regulation 13 of the

Zoning Regulations, 1981. Hence, the repeal of Regulation

13 of the Zoning Regulations, 1981 by G.O.Ms. No. 183,

dated 07.12.2015 is contrary to Section 59 of the Urban

Areas Act. Thus, it is illegal.

(c) The reasons given by the learned AAG for

repealing Regulation 13 of the Zoning Regulations, 1981

are highly misplaced. The learned AAG is unjustified in

claiming that Regulation 13 of the Zoning Regulations,

1981 is inconsistent with and contrary to the Urban Areas

Act. In fact, the former is in consonance with the latter.

For, both the Urban Areas Act and the Zoning Regulations

deal with the concept of planning and development of

Hyderabad city. Both are well aware of the fact that

Hyderabad does have historical monuments, which form

part of the heritage of the city. Both are well aware of the

fact that such heritage needs to be protected, restored and

conserved. Keeping in mind the need to protect, conserve

and restore these monuments, Section 39 of the Urban

Areas Act required the constitution of an Urban Art

Commission. Section 39(2)(iii) of the Urban Areas Act

clearly imposes a duty on the Commission to make

recommendations to the government for conservation and
26

restoration of archaeological and historical sites. According

to the learned Senior Counsel, it is a misnomer to try to

distinguish between a “historical monument”, and a

“heritage building”. For, according to the learned Senior

Counsel, while “historical monuments” form a genus,

“heritage buildings” form a species of the said genus.

Therefore, such distinction made by the learned Additional

Advocate General that there is no provision dealing with

“heritage building” in section 39 of the Urban Areas Act is a

misinterpretation of law. In order to buttress this plea, the

learned counsel has drawn the attention of this Court to

the definition of “heritage building” given in the Act, 2017.

According to the said definition, it includes “any building

which requires conservation and/or preservation for

historical or cultural value”. Therefore, in order to be a

“heritage building”, the building is required to be a

“historical”. Hence, the purpose of Section 39 of the Urban

Areas Act and Regulation 13 of the Zoning Regulations,

1981 is similar in nature, namely to protect historical

monuments, which would per se include “heritage

buildings”, which are located within the Hyderabad

Metropolitan area. Therefore, Regulation 13 of the Zoning

Regulations, 1981 is clearly intra vires the Urban Areas Act.
27

Hence, the basis for repealing Regulation 13 of the Zoning

Regulations, 1981 is invalid.

(d) Even the reliance on different Entries of List-II is

highly misplaced. For, the argument presumes that the

law necessarily has to be confined to a single Entry of List-

II. And a law cannot be permitted to cover more than one

Entry of List-II. But such a presumption on part of the

State is belied by the decisions of the Hon’ble Supreme

Court in Hari Kishan Bhargav v. Union of India9, The

Madurai District Central Co-operative Bank Ltd. v. The

Third Income Tax Officer10, and M/s Ujagar Prints v.

Union of India11. Therefore, the Urban Areas Act while

originating from Entry 5 of List-II of the Seventh Schedule

of the Constitution of India could legally deal with subject

falling under Entry 12, List-II of the Seventh Schedule of

the Constitution of India. Hence, the learned AAG is not

justified in claiming that there is constitutional mismatch

between the Urban Areas Act, and Regulation 13 of the

Zoning Regulations, 1981.

(e) Moreover, the learned AAG has invented a

constitutional basis for claiming that Regulation 13 of the

Zoning Regulations, 1981 is inconsistent with and ultra

vires the Urban Areas Act. For, such an explanation or
9
AIR 1966 SC 619
10
(1975) 2 SCC 454
11
(1989) 3 SCC 488
28

reason has not been stated in G.O.Ms. No. 183, dated

07.12.2015, by which, Regulation 13 of the Zoning

Regulations, 1981 was repealed by the government.

(f) Furthermore, the contents of letter dated

16.04.2015 belie the arguments of the learned AAG.

According to the learned Senior Counsel, in the said letter,

although the HMDA had prayed for repealing of Zonal

Regulations, 1981, but simultaneously, it had carved out

an exception with regard to Regulation 13 of the Zoning

Regulations, 1981. In fact, it had pleaded for establishing

a Committee which would identify historical monuments

and heritage building. According to the learned Senior

Counsel, this was done as in W.P. No. 6820 of 2008, in

order dated 21.04.2014, a learned Single Judge had

noticed the fact that the Heritage Conservation Committee

had ceased to function from 16.03.2013. Moreover, the

learned Single Judge, and in W.P. (PIL) No. 360 of 2015 a

learned Division Bench of the former High Court of

Judicature at Hyderabad for the State of Telangana and the

State of Andhra Pradesh had directed the government to

reconstitute the Committee and continue to implement

Regulation 13 of the Zoning Regulations, 1981. Hence, the

plea to constitute the Committee, made in the letter dated

16.04.2015 is based on the directions issued by the former
29

High Court of Judicature at Hyderabad for the State of

Telangana and the State of Andhra Pradesh. Therefore, the

HMDA was pleading for the continuation of Regulation 13

of the Zoning Regulations, 1981, and not for its abrogation

by the government.

Most importantly, even if there was a request by the

HMDA to the government for repealing Regulation 13 of the

Zoning Regulations, 1981 in the letter dated 16.04.2015,

the said letter is not mentioned in G. O. Ms. No. 183,

dated 07.12.2015. Hence, the reliance on the letter dated

16.04.2015 is merely an after-thought. Such a defence

only has to be uttered to be rejected.

(g) Further, according to the learned Senior

Counsel, although not conceding the point, but for the sake

of argument, accepting that the government does have the

power to repeal the Regulation 13 of the Zoning

Regulations, 1981, the regulation cannot be repealed

retrospectively, “from its very inception”. For, the settled

principle of law is that the provision granting the power to

repeal must also grant the power to repeal retrospectively.

However, Section 59 of the Urban Areas Act does not

empower the government to repeal the regulation

retrospectively. Therefore, the government could not have

repealed Regulation 13 of the Zoning Regulations, 1981
30

“from its very inception”. At best, it could have repealed the

said regulation from the date of the government order.

(h) Even if it were conceded for the sake of argument

that the government could repeal the Regulation 13 of the

Zoning Regulations, 1981, under Section 8 of the Andhra

Pradesh General Clauses Act, 1891, which is mutatis

mutandis of Section 6 of the General Clauses Act, 1897,

any right bestowed under the original law would continue

to exist notwithstanding the repeal of the law. Therefore,

once a protection was bestowed upon Irrum Manzil, the

protection would continue to exist notwithstanding the

repeal of Regulation 13 of the Zoning Regulations, 1981.

(i) The learned Senior Counsel has not argued

extensively on “legislation by reference”, or “the legislation

by incorporation”. For, the said contention has been

argued in depth by Mr. Nalin Kumar, the learned counsel

in Writ Petition (PIL) No. 79 of 2019. The learned Senior

Counsel has merely adopted those arguments. Therefore,

these arguments are not being recorded at this juncture.

(j) Lastly, the learned Senior Counsel has pleaded

that once a procedure is established by law for changing

the land usage specific to a zone under the Zoning

Regulations, the Cabinet is not justified in taking a decision

in violation of the procedure established by law. Therefore,
31

the decision making process stands vitiated. Furthermore,

since the impugned decision is against the order passed by

a learned Division Bench of the former High Court of

Judicature at Hyderabad for the State of Telangana and the

State of Andhra Pradesh, dated 18.04.2016 in W.P.(PIL) No.

360 of 2015, the decision making process is illegal.

Therefore, the impugned decision of the Cabinet deserves to

be set aside by this Court.

Writ Petition (PIL) No.79 of 2019

34. Mr. Nalin Kumar, the learned counsel for the

petitioner, in the petition mentioned hereinabove, and Mr.

D. Prakash Reddy, the learned Senior Counsel, at times,

have echoed the arguments of each other. Therefore, only

those arguments of Mr. Nalin Kumar are being recorded,

which supplement the arguments of Mr. D. Prakash Reddy,

the learned Senior Counsel.

35. Mr. Nalin Kumar, the learned Counsel for the

petitioner in W.P. (PIL) No. 79 of 2019, has raised the

following contentions:-

Firstly, undoubtedly Regulation 13 of the Zoning

Regulations, 1981 was promulgated by the HUDA under

Section 59 of the Urban Areas Act. Subsequently, 151

heritage buildings, including the Irrum Manzil, were

identified and were bestowed with the status of being
32

“protected heritage buildings”. Although the respondents

have pleaded that Regulation 13 of the Zoning Regulations,

1981 was repealed “from its very inception”, the right

bestowed upon the protected heritage buildings would

continue to exist under Section 8 of the Andhra Pradesh

General Clauses Act, 1891, which is mutatis mutandis with

Section 6 of the General Clauses Act, 1897. Under this

provision, any right, privilege, obligation or liability

acquired, accrued or incurred under any enactment so

repealed, would continue notwithstanding the said repeal.

Since a right of protection had been bestowed upon the

heritage buildings by the inclusion in the list promulgated

under the Regulation 13 of the Zoning Regulation, 1981,

the right of protection would continue even if the said

Regulation were repealed.

Secondly, initially, the Urban Areas Act existed.

Under the said Act, HUDA looked after the planning and

development of Hyderabad. However, with the enactment

of the HMDA Act in 2008, the HMDA replaced HUDA. Thus,

it is imperative to first consider the functions and powers of

HMDA under the HMDA Act.

Section 3 of the HMDA Act empowers the government

to exclude, or include areas from the development area.

Moreover, Section 3(3) of the HMDA Act incorporates the
33

provisions of sub-sections (3) to (8) of Section 13 of the

Urban Areas Act. According to Section 13 of the Urban

Areas Act, it is the duty of the HMDA to carry out the

developmental plan falling under the development area.

Moreover, according to Section 13(4) of the Urban Areas

Act, “no development of land within the development area

shall be undertaken or carried out by any person or body

including any department of the government, unless

permission for such development has been obtained in

writing from the Authority in accordance with the provisions

of this Act”. Therefore, Section 13 of the Urban Areas Act,

as incorporated in Section 3(3) of the HMDA Act, prescribes

the procedure for carrying out a development within the

development area.

Furthermore, Section 6 of the HMDA Act prescribes

the powers and functions of the HMDA. Section 6(1) of the

HMDA Act imposes a duty upon the HMDA to prepare the

Metropolitan Development and Investment Plan. Moreover,

Section 11 of the HMDA Act deals with preparation of

“Metropolitan Development Plan and Investment Plan”.

Section 11 (1) (iii) (b) casts a duty upon the HMDA to

formulate “policies for preservation, conservation and

development of areas of natural beauty and scenic spots

and areas of historic and archaeological interest and tourism
34

areas”. Therefore, one of the cardinal functions of the

HMDA is to preserve and conserve the areas of historical

value. According to the learned counsel, the function

being bestowed upon the HMDA is similar to the function

bestowed upon HUDA under Regulation 13 of the Zoning

Regulations, 1981.

Further, Section 19 clearly stipulates that “no

development or institution of use or change of use of any

land, shall be undertaken or carried out in the metropolitan

region without obtaining a development permission order

from the Metropolitan Authority”. Thus, the said section

places a prohibition upon change of use of any land,

without the permission of the Development Authority.

Section 29 enables the Development Authority to

prepare development scheme and to make provisions for all

or any of the matters, namely “preservation and protection

of heritage sites and buildings, objects of historical

importance or outstanding natural beauty, etc.”

Further, Section 57 of the HMDA Act bestows the

power to formulate the regulations only on the HMDA, the

Development Authority.

Consequently, while invoking its power under Section

6(1) and Section 11 of the HMDA Act, in 2010, the HMDA

had published the master plan for the metropolitan area of
35

Hyderabad and had formulated the Zoning Regulations in

2010. Regulation 9 (A) (ii) of Zoning Regulations, 2010

specifically mentions that while dealing with the heritage

buildings, which fall within the Special Reservation Use

Zone, “it is necessary to obtain a specific clearance from

HMDA, after consultations of Heritage Conservation

Committee before undertaking certain kinds of development

and re-development as specified by the government or

issued as specific guidelines”. It further states that “the

heritage regulations issued vide G.O.Ms. No. 542, dated

14.12.1995 (i.e. the Regulation 13 of the Zoning Regulations

1981) and other relevant orders/amendments issued by the

government, from time to time, shall be applicable”.

Thirdly, the mentioning of Regulation 13 of the Zoning

Regulations, 1981, in Regulation 9 (A) (ii) of the Zoning

Regulations, 2010, is “legislation by incorporation”, and not

“by reference”. While expanding on this argument, the

learned counsel has submitted the following sub-

arguments:-

(a) HMDA Act and the Zoning Regulations made

thereunder form a complete Code in themselves. For, both

the Act and the Zoning Regulations focus on the planning

and the development of the metropolitan area. Therefore,

essential factors, which need to be taken into account for
36

planning the development of the city, necessarily have to be

considered by the HMDA. Since Hyderabad has large

number of heritage buildings and historical monuments,

since the planning and development of the city would

necessarily involve such historical monuments and

heritage buildings, Section 11 of the HMDA Act clearly

stipulated that “the HMDA would have to draft policies for

the preservation, and conservation of these historical

monuments and heritage buildings”. Similarly, Section 29 of

the HMDA Act casts a duty on the HMDA to prepare the

development scheme. While doing so, under Section 29 (1)

(g) of the HMDA Act, the development authority is required

to make provision for the “preservation and protection of

heritage sites and buildings”. Therefore, a legal duty is cast

upon the HMDA to protect and preserve the heritage

buildings while preparing the Master Plan, or the Zonal

Plan.

(b) While relying on the case SectionBharat Cooperative

Bank (Mumbai) v. Cooperative Bank Employees Union12,

the learned counsel has pleaded that in order to examine

whether it is case of legislation by “reference” or by

“incorporation”, one of the tests to be applied is to consider

the aim and object of the legal provisions. While applying

12
(2007) 4 SCC 685
37

this test, it is obvious that the aim of Regulation 13 of the

Zoning Regulations, 1981, and the aim of the HMDA Act,

as reflected in Section 11 read with Section 29 of the Act,

mentioned hereinabove, is to preserve and protect heritage

sites and buildings. Keeping in mind the purpose, scope

and ambit of Section 11 and Section 29 of the HMDA Act,

Regulation 9(A)(ii) of the Zoning Regulations, 2010

mentions Regulation 13 of the Zoning Regulations, 1981.

Therefore, the reference to Regulation 13 of Zoning

Regulations, 1981 in Regulation 9(A)(ii) of Zoning

Regulations, 2010 is by “incorporation”.

(c) Ordinarily, if an Act is referred to by its title, it is

intended to refer to that Act with all the amendments made

in it up to the date of reference. In order to support this

plea, the learned counsel has relied on the case of SectionState of

Maharashtra v. Madhavrao Damodar Patil13. In the

present case, Regulation 9(A)(ii) of the Zoning Regulations,

2010 refers to the G.O.Ms.No.542, MA, dated 14.12.1995,

that is by the title of Regulation 13. Thus, the mention of

Regulation 13 of Zoning Regulation, 1981 is “legislation by

incorporation”. Hence, any amendment made only up to

the date of incorporation, i.e., only till 2010 in case of

Zoning Regulations, 2010 are deemed to have been

13
AIR 1968 SC 1395
38

incorporated. Therefore, any amendment made qua

Regulation 13 of the Zoning Regulations, 1981, in post-

2010 period would not adversely affect the scope, operation

and ambit of Regulation 13 of the Zoning Regulations, 1981

as incorporated in Zoning Regulations, 2010. Hence, the

repeal of Regulation 13 in 2015 would leave the mentioning

of Regulation 13 in Zoning Regulations, 2010 untouched

and intact. In order to buttress the plea, the learned

counsel has relied on the case of SectionMahindra Mahindra

Limited v. Union of India14, and on the case of SectionState of

Uttar Pradesh v. Mohan Singh15.

(d) Regulation 13 of the Zoning Regulations, 1981

was framed under Section 59 of the Urban Areas Act.

However, the Zoning Regulations, 2010 was framed under

HMDA Act. Therefore, even if for the sake of argument it

were accepted that the Regulation 13 of the Zoning

Regulations, 1981, were to be repealed from its very

inception, the repeal would be qua the Urban Area Act, and

not qua the HMDA Act. Therefore, the repeal of Regulation

13 of the Zoning Regulations, 1981 even if held to be valid,

would not adversely affect the operation of the scope and

ambit of HMDA Act.

14 (1979) 2 SCC 529
15 (2012) 13 SCC 281
39

(e) Another indication that the mentioning of

Regulation 13 of the Zoning Regulations, 1981, is by way of

“incorporation” is that part of Regulation 13 of Zoning

Regulations, 1981 has been modified by Regulation 9(A)(ii)

of the Zoning Regulations, 2010. Sub-regulation (2) of

Regulation 13 of the Zoning Regulations, 1981 clearly

stipulated that the demolition of the whole or any part of

the heritage building shall be allowed only with the prior

written permission of the Vice-Chairman of the HUDA

(now the Commissioner, HMDA). The Vice-Chairman,

HUDA, was required to seek the advice of or in consultation

of the Heritage Conservation Committee. In exceptional

cases, the Vice-Chairman could overrule the

recommendation of the heritage conservation committee.

However, on the other hand, Regulation 9(A)(i) of the

Zoning Regulations, 2010, clearly stipulates that before

undertaking any kind of development or re-development

“as specified by the government or issued as specific

guidelines”, a specific clearance from HMDA, after

consultation by the Heritage Conservation Committee, is

required. The words “as specified by the government or

issued as specific guidelines” are conspicuously missing

from Regulation 13 (2) of the Zoning Regulations, 1981.
40

Moreover, Regulation 9(A)(i) of the Zoning Regulations,

2010 further stipulates that “a special exemption from land

use controls is allowed subject to approval from the

government in the interest of conservation of heritage

buildings with the concurrence from the heritage committee

subject to mandated public safety requirements”. This entire

sentence does not exist in Regulation 13 of the Zoning

Regulations, 1981. This clearly proves that Regulation 9(A)

of the Zoning Regulations, 2010 not only incorporates

Regulation 13 of the Zoning Regulations, 1981, but even

modifies it to a limited extent. Therefore, the mentioning of

Regulation 13 of the Zoning Regulations, 1981 in the

Zoning Regulations, 2010 is by way of “incorporation”; it is

certainly not by way of “reference”.

(f) Considering the fact that Regulation 9(A)(i) of the

Zoning Regulations, 2010, permits the government to allow

special exemption from land use controls in the interest of

conservation of heritage building, this further proves that

conservation of “heritage building” is of great significance

and importance. Thus, the goal of Regulation 9(A) Zoning

Regulations, 2010 is to protect and conserve the “heritage

buildings”.

41

(g) Relying on the case of Nagpur Improvement

Trust v. Vasant Rao16, the learned counsel has

emphasised that when an earlier Act or certain of its

provisions of the Act are incorporated by reference into a

later Act, the provisions so incorporated become part and

parcel of the later Act as if they had been bodily

transported into it. Moreover, in case of legislation by

“incorporation”, the repeal of the first statute by a third

statute does not affect the second statute where the

“incorporation” exists. The later Act along with the

incorporated provisions of the earlier Act constitutes an

independent legislation which is not modified or repealed

by a modification or repeal of the earlier Act.

(h) Relying on the case of SectionGirnar Traders v. State

of Maharashtra17, the learned counsel has further

contended that while applying any of the doctrines, the

Court will have to take care that there is “no distortion or

destruction of the provisions of the principal statute”. For

examining this aspect, it really would not matter whether

we apply the doctrine of “incorporation” or “reference” to

the present case. What this Court would have to consider is

the placement of Regulation 9(A)(ii) of the Zoning

Regulations, 2010 and its correlation to the HMDA Act. Any

16
(2002) 7 SCC 657
17
(2011) 3 SCC 1
42

interpretation which would make Regulation 9(A)(ii) of the

Zoning Regulations, 2010 redundant or otiose, or would

denude the Development Authority of its power to plan and

develop, and/or to consent to a modification to a

development plan, necessarily has to be avoided by this

Court.

(i) If, however, the mentioning of Regulation 13 of the

Zoning Regulations, 1981 in the Zoning Regulations, 2010

were taken to be legislation by “reference”, any subsequent

amendment in Regulation 13 Zoning Regulations, 1981

would necessarily have to be read in Regulation 9(A)(ii) of

the Zoning Regulations, 2010. This would, therefore, imply

that the repeal of Regulation 13 of the Zoning Regulations,

1981 “from its very inception” would automatically delete

Regulation 13 of the Zoning Regulations, 1981 from the

Zoning Regulations, 2010. However, such an interpretation

would have catastrophic effect on Regulation 9(A)(i) of the

Zoning Regulations, 2010, and on the HMDA Act itself.

For, the Master Plan 2010 has demarcated certain zones as

Special Reservation Zones which deal with heritage

buildings and heritage sites. Under Section 15 of the HDMA

Act, the Development Authority may modify the

development plan as it thinks fit, and which in its opinion

are necessary. Moreover, Section 19 of the HMDA Act
43

prohibits that no development shall be undertaken without

obtaining the permission from the Development Authority.

However, if Regulation 13 of the Zoning Regulations, 1981

is said to be deleted from Regulation 9(A)(ii) of the Zoning

Regulations, 2010, firstly the Development Authority

cannot modify the Metropolitan Development Plan qua the

Special Reservation Zone under Section 15 of the HMDA

Act. Secondly, no permission needs be sought from the

Development Authority before any change of use of the land

is made in the Special Reservation Zone as contemplated

under Section 19 of the HMDA Act. Such an interpretation,

obviously, would deplete and dilute the powers of the

Development Authority. Hence, such an interpretation

should be avoided like the plague. Therefore, the only

conclusion that can be drawn is that the mentioning of

Regulation 13 of the Zoning Regulations, 1981 in

Regulation 9(A)(ii) of the Zoning Regulations, 2010 is,

indeed, by way of “incorporation”, and not by way of

“reference”.

(j) Since the mentioning of Regulation 13 of the

Zoning Regulations, 1981 in Regulation 9(A)(ii) of the

Zoning Regulations, 2010 is by way of “incorporation”,

therefore, the repeal of Regulation 13 of the Zoning

Regulations, 1981 by G. O. Dated 07.12.2015 would not
44

delete the said Regulation from the Zoning Regulations,

2010.Hence, the protection provided to Irrum Manzil under

Regulation 13 of the Zoning Regulations, 1981, would

continue to subsist under the Zoning Regulations 2010.

Therefore, the decision of the Cabinet dated 18.06.2019, to

demolish the Irrum Manzil is in violation of Regulation

9(A)(ii) of the Zoning Regulations, 2010. Moreover, the said

decision is also in violation of Sections 15 and 19 of the

HMDA Act. Hence, the decision is arbitrary. Therefore, it

deserves to be interfered with by this Court.

36. On the other hand, Mr. J. Ramchandra Rao, the

learned AAG, has raised the following counter-arguments:-

(i) The argument of the learned counsel for the

petitioner based on Section 8 of the Andhra Pradesh

General Clauses Act, 1891 is highly misplaced. For, before

the protection under the said provision can be granted, it is

imperative that the fresh Act brought into force must repeal

the previous Act/provision. However, the Act, 2017 does

not repeal Regulation 13 of the Zoning Regulations, 1981

for the very simple reason that Regulation 13 of the Zoning

Regulations, 1981 ceased to exist in 2015 itself. Therefore,

the protection given under Regulation 13 of the Zoning

Regulations, 1981 cannot be continued under Section 8 of

the Andhra Pradesh General Clauses Act, 1891.
45

(ii) It is not a case of simple repeal of a regulation, but

the repeal has been followed by a fresh law dealing with

protection of ancient and historical monuments, namely by

Act, 2017. Therefore, the provisions of the new Act have to

be considered while deciding whether the protection under

Section 8 of the Andhra Pradesh General Clauses Act

would apply or not?

(iii) Relying on the case of SectionState of Punjab v. Mohar

Singh Pratap Singh18, the learned counsel has pleaded

that although the consequences of Section 8 of the Andhra

Pradesh General Clauses Act would follow if an enactment

is repealed, but not if a different intention appears while

repealing the Act. If a repeal is followed by a fresh

legislation on the same subject, this Court will have to

examine the provisions of the new Act for the purpose of

determining whether they indicate a different intention or

not. The line of enquiry would not be whether the Act

expressly keeps the old rights and liabilities alive, but

whether the new Act “manifests an intention to destroy”

them. If there is an incompatibility between the new

enactment, and the old enactment, which was repealed, the

intention to destroy the old rights and liabilities would be

writ large. Since there is incompatibility between

18
AIR 1955 SC 84
46

Regulation 13 of the Zoning Regulations, 1981 and Act,

2017, the intention to destroy the old rights bestowed

under the former is rather apparent. Therefore, the benefit

of Section 8 of the Andhra Pradesh General Clauses Act

cannot be given to the Irrum Manzil.

(iv) Relying on the case of SectionKolhapur Canesugar

Works Ltd. v. Union of India19, the learned AAG has

pleaded that the normal effect of repealing a statute or

deleting a provision is to obliterate it from the statute-book

as completely as if it had never been passed, and the

statute must be considered as a law that never existed.

The intention that the rights conferred by the earlier

statute no longer existed, and indeed have been

extinguished would be manifest from the fact that the

subsequent statute does not contain any saving clause.

According to the learned counsel, the Act, 2017 does not

contain any saving clause thereby saving Regulation 13 of

the Zoning Regulations, 1981. Thus, “the intention is

manifestly clear” that any right bestowed upon a “heritage

building” under Regulation 13 of the Zoning Regulations,

1981 stands extinguished and destroyed. Hence, the

petitioner is unjustified in claiming that the benefit of

Section 8 of the Andhra Pradesh General Clauses Act

19
(2000) 2 SCC 536
47

should not only be extended, but the protection given

under Regulation 13 of the Zoning Regulations, 1981

should also be continued qua the Irrum Manzil.

(v) Relying on the case reported in SectionBansidhar v. State

of Rajasthan20, the learned AAG has pleaded that while

considering the question of protection being provided under

Section 8 of the Andhra Pradesh General Clauses Act, the

Court is required to examine the issue whether the rights

under the repeal Act have been saved or not? The saving

may be expressed or implied. However, where the

provisions of the old Act are incompatible with the rights

under the new Act, the former Act is said to be

extinguished. Therefore, any right or privilege, which

emanates from the former Act, ceases to exist.

(vi) Relying on the case of SectionLalji Raja v. Hansraj

Nathuram21 and on the case of Bansidhar (supra), the

learned AAG has pleaded that Section 8 of the Andhra

Pradesh General Clauses Act saves “accrued rights”, and

not “abstract rights”. Since no right has “accrued” upon

the protected heritage building, the protection does not

continue beyond the date of the repeal of Regulation 13 of

the Zoning Regulations, 1981, namely beyond 2015.

20

(1989) 2 SCC 557
21
(1971) 1 SCC 721
48

(vii) Both the Urban Areas Act, and the HMDA Act are

parental Acts, which contain provisions empowering the

Development Authority to prepare the Metropolitan

Development Plan, and to seek the sanction of the

government before a Master Plan can be implemented.

Both these Acts also empower the Development Authority

to formulate regulations. However, both the Master Plan

and the Zoning Regulations are subordinate pieces of

legislation. Therefore, the Master Plan cannot be exalted

to a position of a statutory legislation. Moreover, a Zoning

Regulation being a subordinate legislation does not have

the force of law. Therefore, the reliance placed by the

learned counsel for the petitioners upon Regulation 9(A)(ii)

of the Zoning Regulations, 2010 in order to plead that

Irrum Manzil is a protected heritage building, is highly

misplaced.

(viii) Entry 12, List-II of the Seventh Schedule of the

Constitution of India deals with “ancient and historical

monuments”, which are not declared to be of national

importance. Taking its cue from the said Entry, the

erstwhile State of Andhra Pradesh had enacted the Act,

1960. However, the said Act dealt only with “ancient and

historical monuments”, and not with “heritage buildings or

heritage sites”.

49

(ix) Entry 5, List-II of the Seventh Schedule of the

Constitution of India deals with local government i.e. to

say, “with the constitution and powers of the municipal

corporations etc.” It is under this Entry that the Urban

Areas Act was enacted. Even if Section 39 of the Urban

Areas Act bestowed a duty upon the Urban Art Commission

to make recommendations with regard to restoration and

conservation of archaeological and historical sites, even

then, the Act did not deal with “heritage buildings or

heritage sites”. Since HUDA itself was created under a law

emanating from Entry 5, List-II of the Seventh Schedule of

the Constitution of India, it could not have promulgated

any regulation, which would have encroached upon Entry

12, List-II of the Seventh Schedule of the Constitution of

India. Hence, the formulation of Regulation 13 of the

Zoning Regulations, 1981 was ultra vires the power of

HUDA. Therefore, the State was justified in concluding

that Regulation 13 of the Zoning Regulations, 1981 is

contrary to the parental Act, namely Urban Areas Act.

(x) Part IX-A of the Constitution of India deals with the

constitution of the municipalities, composition of the

municipalities, and the powers, authorities and

responsibilities of the municipalities. SectionArticle 243-W of the

Constitution of India empowers the legislature of the State
50

to endow, by law, powers upon the municipalities to

perform functions and implement schemes in relation to

those matters listed in Twelfth Schedule of the Constitution

of India. However, the Twelfth Schedule of the Constitution

of India does not impose a duty upon the municipalities to

preserve “historical sites and historical monuments or even

heritage buildings or heritage sites”. Therefore, both

HUDA/HMDA should confine their jurisdictions to those

items which have been mentioned in the Twelfth Schedule

of the Constitution of India. Hence, the Regulation 13 of

the Zoning Regulations, 1981 dealing with the preservation

of heritage buildings/heritage sites is ultra vires the

functions bestowed by SectionArticle 243-W of the Constitution of

India. Therefore, while realising that Regulation 13 of the

Zoning Regulations, 1981 was contrary to the

constitutional provisions, and to the Entries mentioned in

List-II of the Seventh Schedule of the Constitution of India,

the government was certainly justified in repealing

Regulation 13 of the Zoning Regulations, 1981 “from its

very inception”.

(xi) Relying on the case of SectionBharathidasan University

v. All India Council for Technical Education22, the

learned AAG submits that if the regulations are made

22
(2001) 8 SCC 676
51

beyond the provisions of the parental Act, the Court can

ignore such regulations. Since Regulation 13 of the Zoning

Regulations, 1981 is inconsistent with the provisions of

Urban Areas Act, the Regulation 13 of the Zoning

Regulations, 1981 can be ignored easily by this Court.

(xii) After the bifurcation of the erstwhile State of

Andhra Pradesh into the State of Andhra Pradesh and the

State of Telangana, it was realised that there is no law

prevalent in the State of Telangana to protect the historical

monuments and archaeological sites. Therefore, the State

enacted the Act, 2017. Since the Act, 2017 does not save

the Regulation 13 of the Zoning Regulations, 1981, the

protection given under Regulation 13 of the Zoning

Regulations, 1981 stands automatically repealed with the

enactment of Act, 2017.

(xiii) SectionThe Act, 2017 has saved merely those

monuments, which were protected under the Act, 1960.

Therefore, the protection would continue to only these

monuments which are covered under the new enactment of

Act, 2017. Hence, the protection bestowed upon Irrum

Manzil under Regulation 13 of the Zoning Regulations,

1981 is impliedly repealed.

(xiv) Since Act, 2017 covers the entire State of

Telangana, including the metropolitan area of Hyderabad,
52

Act, 2017 and Regulation 13 of the Zoning Regulations,

1981 cannot co-exist simultaneously. Therefore, with the

coming into force of Act, 2017, Regulation 13 of the Zoning

Regulations, 1981 is impliedly repealed.

(xv) Even the reasons and the statement of objects of

Act, 2017 clearly reveal that the State was keenly aware of

the fact that there was no law which protected historical

monuments and heritage buildings/heritage sites in the

State. For, Regulation 13 of the Zoning Regulations, 1981

was repealed in 2015. Therefore, it was imperative to enact

a new law. Hence, even the statement of reasons and

objects point to the fact that with the new law coming into

force, Regulation 13 of the Zoning Regulations, 1981 would

cease to have any relevance.

(xvi) The mentioning of Regulation 13 of the Zoning

Regulations, 1981 in Regulation 9(A)(ii) of the Zoning

Regulations, 2010 is merely “by reference” and not “by

incorporation”.

(xvii) Relying on the case of Girnar Traders (supra),

the learned AAG has pleaded that when there is a general

reference in the Act in question to some earlier Act, but

there is no specific mention of the provisions of the former

Act, then it is “legislation by reference”, and not “by

incorporation”. There is merely a general reference to
53

Regulation 13 of the Zoning Regulations, 1981 in

Regulation 9(A)(ii) of the Zoning Regulations, 2010. There

is no indication that any of the specific provisions of

Regulation 13 of the Zoning Regulations, 1981 are being

incorporated in the Zoning Regulations, 2010. Hence, the

mentioning of Regulation 13 of the Zoning Regulations,

1981 in Zoning Regulations, 2010 is “legislation by

reference”.

(xviii) Once it is “legislation by reference”, then any

subsequent amendment made after the date of “legislation

by reference”, would affect the existence of the provision,

which has been brought into the later Act “by reference”.

Hence, when Regulation 13 of the Zoning Regulations,

1981 was repealed in 2015, that too “from its very

inception”, any mentioning of Regulation 13 of the Zoning

Regulations, 1981 in the Zoning Regulations, 2010 would

stand automatically deleted. Therefore, the protection

given to the Irrum Manzil under Regulation 13 of the

Zoning Regulations, 1981 no longer survives. Since Irrum

Manzil is no longer a protected heritage building, the

government is well within its power to demolish the same

for the purpose of construction of a new legislative complex

at the site of the palace. Thus, the decision taken by the

Cabinet on 18.06.2019 is legally valid.

54

37. In rejoinder, Mr. Nalin Kumar, the learned

counsel for the petitioner, has also relied on the case of

Mohar Singh Pratap Singh (supra) and pleaded that in the

said case, the Apex Court had already opined that “the

Court cannot subscribe to the broad proposition that Section

6 of the General Clauses Act is ruled out when there is

repeal of an enactment followed by a fresh legislation”.

Thus, even if Regulation 13 of the Zoning Regulations,

1981 were followed by a fresh legislation, namely the Act,

2017, the new enactment, even without a saving clause,

would not deprive the protection extended under Section 6

of the General Clauses Act, and in our case, Section 8 of

the Andhra Pradesh General Clauses Act. The protection

under Section 8 of the A. P. General Clauses Act can be

deprived only if the new legislation “manifests an intention”

incompatible with, or contrary to the protection of Section 8

of the A. P. General Clauses Act. However, the Act, 2017

does not indicate any such intention to deprive the

protection provided by Section 8 of the A. P. General

Clauses Act.

Secondly, there is no incompatibility between

Regulation 13 of the Zoning Regulations, 1981, and the

Act, 2017. For, both the Act and the Regulation are meant

to protect to serve and preserve the “historical monuments”
55

and “heritage buildings”. In fact, Act, 2017 itself deals with

the protection of “heritage buildings”. Thus, both the Act,

2017 and the Regulation 13 of the Zoning Regulations are,

in fact, in consonance with each other.

Thirdly, relying on the case of SectionJustiniano Augusto De

Piedade Barreto v. Antonio Vicente Da Fonseca23, the

learned counsel has pleaded that there is a distinction

between a “general law”, a “special law” and a “local law”.

A “special law” is one which is on a particular subject-

matter, and is applicable to a larger territory than a “local

law”. A “local law” is one which is applicable to a limited

territory. Therefore, both the laws can co-exist, especially

when there is no incongruity between the two laws.

Moreover, Regulation 13 of the Zoning Regulations, 1981 is

applicable to the limited area of Hyderabad Metropolitan

Area. Hence, it is a “local law”. However, the Act, 2017 is a

“special law” as it deals with a particular subject-matter,

and is applicable to the entire State. Hence, the Regulation

13 of the Zoning Regulations, 1981 and its incorporation in

Regulation 9(A)(ii) of the Zoning Regulations, 2010 deal

with a “local law”, as the law is confined to a particular

geographical area. Therefore, in fact, both the Act, 2017

and the Regulation 13 of the Zoning Regulations, 1981 can

23
(1979) 3 SCC 47
56

peacefully co-exist as they are compatible to and cover the

same field. Thus, the learned AAG is unjustified in

claiming that the Act, 2017 and the Regulation 13 of the

Zoning Regulations, 1981 cannot co-exist.

Fourthly, even if for the sake of argument it were

accepted that there is an incompatibility between Act, 2017

and the Regulation 13 of the Zonal Regulations, 1981, even

then the “local law” would override the “special law”. Thus,

even then, the Regulations 13 of the Zonal Regulations,

1981, as incorporated in Regulation 9 (A) (ii) of the Zonal

Regulations, 2010 would continue to cover the field in

Hyderabad.

Fifthly, even in the Statement of Objects and Reasons

for bringing the Act, 2017 into the statute-book, the

legislature had clearly stated that “there is no law, but in

the HMDA area”. Thus, the legislature was well aware of

the existence of Regulation 13 of the Zoning Regulations,

1981.

Sixthly, the identity of an individual is formed by the

awareness of one’s heritage, culture and history. Sense of

dignity of the individual also emanates from the awareness

of heritage, culture and history. Therefore, preservation of

heritage, culture and history has been incorporated to be

part of SectionArticle 21 of the Constitution of India. In order to
57

buttress this plea, the learned counsel has replied on

SectionRamsharan Autyanuprasi v. Union of India24.

Seventhly, the learned counsel has emphasised that

under SectionArticle 51-A of the Constitution of India, one of the

fundamental duties of a citizen is the preservation of one’s

culture, history and heritage. Relying on the case of SectionAIIMS

Students’ Union v. State of West Bengal25 the learned

counsel has argued that the duty of the individual is also

the collective duty of the State. Thus, the State has a

constitutional duty to preserve the heritage, culture and

history of the State. Therefore, the decision taken by the

Cabinet on 18.06.2019 is contrary to the constitutional

philosophy, and constitutional mandate.

38. Heard the learned counsel for the parties,

perused the record produced by the State, and considered

the case law cited at the Bar.

39. These writ petitions have raised a plethora of

legal issues:

1) Whether Section 59 of the Urban Areas Act

empowers only the Development Authority to formulate a

regulation or not? Or whether such power is bestowed

upon the government or not? Whether the government has

24
AIR 1989 SC 549
25
(2002) 1 SCC 428
58

the power to repeal a regulation under Section 59 of the

Urban Areas Act, or not?

2) Whether the Master Plan, the Zonal Plan and the

Zoning Regulation formulated by the Urban Development

Authority have the force of law or not?

(3) Whether the reasons given for repealing Regulation

13 of the Zoning Regulations, 1981 are legally valid or not?

(4) Whether the repeal of Regulation 13 of the Zoning

Regulations, 1981 by G.O. Ms. No. 183, dated 07.12.2015

is legally sustainable or not?

(5) Whether the mentioning of Regulation 13 of the

Zoning Regulations, 1981 in Regulation 9(A)(ii) of the

Zoning Regulations, 2010 is “legislation by incorporation”

or “legislation by reference”?

(6) What are the legal consequences if the mentioning

of Regulation 13 of the Zonal Regulations, 1981 in the

Zonal Regulations, 2010 is by way of “incorporation”?

(7) If the mentioning of Regulation 13 of the Zonal

Regulations, 1981 is by way of “incorporation”, then what

is the interpretation of the words, “order/amendments

made by the Government from time to time” used in

Regulation 9 (A) (ii) of the Zonal Regulations, 2010?

(8) Whether Irrum Manzil, which was protected under

the Regulation 13 of the Zoning Regulations, 1981 would
59

continue to have the protection under Regulation 9(A)(ii) of

Zoning Regulations, 2010 or not?

(9) Whether the total repeal of Regulation 13 of the

Zoning Regulations, 1981 expresses “a manifest intention”

to deny the protection and the benefit of Section 8 of the

Andhra Pradesh General Clauses Act or not?

(10) Whether the benefit of Section 8 of the Andhra

Pradesh General Clauses Act can be given to Irrum Manzil

or not? And if the protection were given, whether the palace

has an “accrued right” or an “abstract right” of protection?

(11) Whether there is an inconsistency between the

Regulation 13 of the Zoning Regulations, 1981 and the Act,

2017 or not?

(12) Whether both Regulation 13 of the Zoning

Regulations, 1981 and Act, 2017 can peacefully co-exist or

not?

(13) Whether under Section 19 of HMDA Act, the

government is required to take a prior approval of the

HMDA for modifying the Zonal plan or not? And whether

the government can claim the benefit of Section 34 of the

Urban Areas Act, or not?

(14) Whether the decision taken by the Cabinet on

18.06.2019 is in violation of Sections 15 and 19 of HMDA
60

Act, and in violation of Regulation 9(A)(ii) of the Zoning

Regulations, 2010 or not?

(15) Whether the impugned decision is in violation of

the order dated 18.04.2016 passed by the learned Division

Bench in W.P. (PIL) No.360 of 2015 or not?

(16) What is the scope of judicial review of a

government policy decision? And

(17) Whether the impugned decision dated

18.06.2019 of the Cabinet is legally sustainable or not?

40. Before these issues can be adjudicated, this

Court must firstly scan the Constitution of India, the

grundnorm, of all the laws. Since urban Planning is

essential for human life, it is embedded in constitutional

provisions as well. SectionArt. 47 of the Constitution imposes a

duty upon the State to raise the standard of living of its

people, and to improve public health. This is described as

“among its primary duties” of the State. Moreover, under

Part IX-A of the Constitution of India, dealing with

Municipalities, the municipalities are required to deal with

areas specified in the Twelfth Schedule of the Constitution

of India. One of the areas, so enumerated in the Twelfth

Schedule of the Constitution of India, is “urban planning,

including town planning”. Further, SectionArticle 243-ZE of the

Constitution of India prescribes that “in every metropolitan
61

area, a Metropolitan Planning Committee should be

constituted which would prepare a draft development plan

for the metropolitan area”. Although the Metropolitan

Planning Committee is to work under the municipality, but

nonetheless, the Committee is similar to a Development

Urban Authority in a metropolitan city. Thus, urban

planning is part of the constitutional scheme.

41. Besides the particular provisions mentioned

hereinabove, SectionArticle 21 of the Constitution of India

guarantees the fundamental “right to life”. The word “right

to life”, in the expansive interpretation of SectionArticle 21,

includes the right to shelter, to education, to roads, to

hygienic environment of a city. SectionArticle 19 of the

Constitution of India also guarantees the right to freedom

of speech and expression, to move freely throughout the

territory of India, to reside and settle in any part of the

territory of India, to practice any profession, or to carry on

any occupation, trade or business. SectionArticle 25 of the

Constitution of India guarantees the fundamental right to

freedom of conscience and free profession, practice and

propagation of religion. All these provisions are intrinsically

intertwined with urban planning. For, without urban

planning many of these fundamental rights would be

illusionary in their scope and ambit. A well drafted Master
62

Plan ensures that the fundamental rights are protected and

promoted in the cities for the benefit of the inhabitants of

the city. A Master Plan also proves that the State is, indeed,

performing its duty by its people as required under SectionArticle

47 of the Constitution of India. Therefore, urban planning

is an estuary, which flows from the Constitution.

42. Keeping in mind the necessity of urban planning,

Section 59 of the Urban Areas Act empowered HUDA to

frame regulations. The relevant provision of Section 59 of

the Urban Areas Act is as under:

59. Powers to make regulations:-

(1) The Authority may, with the previous
approval of the Government, make regulations
consistent with this Act and the rules made
thereunder, to carry out the purposes of this Act
and without prejudice to the generality of this
power, such regulations may provide for–

(a) xxx

(b) xxx

(c) xxx

(d) xxx

(e) the procedure for the carrying out of the
functions of the Authority under Chapter III;

43. A bare perusal of the provision clearly reveals

that the power to make the regulation is bestowed only on

the Development Authority, and not on the government.

Secondly, the regulations must be “consistent with the Act

and the rules made thereunder”. Thirdly, the regulations

may deal with “the procedure for the carrying out the

functions of the Authority under Chapter III”, the chapter
63

dealing with drawing up of Master Plan and Zonal Plan by

the Development Authority. Fourthly, since the power to

frame the regulations has been bestowed only upon the

Development Authority, ergo the power to repeal is also

only with the Development Authority. Hence, under Section

59 of the Urban Areas Act, the government does not have

the power to repeal the regulations.

44. Moreover, while Regulation 13 of the Zoning

Regulations, 1981 was formulated under Section 59 of the

Urban Areas Act, the Zonal Plan 2010 was drafted under

the HMDA Act. Presently, the controversy is covered under

the provisions of the HMDA Act. Therefore, for our purpose

the provisions of HMDA Act are more germane. For, the

HMDA has not only been constituted, but has also been

bestowed with numerous powers and functions under the

HMDA Act. Therefore, it would be beneficial to have an

overview of the important provisions of the HMDA Act,

which are as under:-

45. Section 3 of the HMDA Act empowers the

government to declare the Hyderabad metropolitan region

consisting of such urban or rural areas as a development

area for the purposes of the Act. Section 4 of the HMDA

Act constitutes the HMDA.

64

46. Section 6 of the HMDA Act enumerates the

various powers and functions of HMDA. Section 6(1) of the

HMDA Act imposes a duty upon HMDA to “undertake

preparation of Metropolitan Development and Investment

Plan, revision of the said Plan and prioritize the

implementation of the said Plan”.

47. Section 11 of the HMDA Act, dealing with

preparation and contents of Metropolitan Development Plan

and Investment Plan clearly, states that “while the

Development Authority shall prepare a Metropolitan

Development Plan, it must have due regard to policies for

preservation, conservation and development of areas of

historic and archaeological interest”.

(Emphasis Added).

48. Section 12 of the HMDA Act further empowers the

HMDA to “prepare area level development plans or action

plans for execution of projects and schemes for any sector or

area of the metropolitan region”. These are referred to as

“the Zonal Plan”.

49. Once the Plan is ready, once the objections have

been invited from the public at large, once the objections

have been considered, and, if necessary, the Plan has been

modified or revised, the HMDA is required to submit the
65

Plan for the sanction of the government under Section 13 of

the HMDA Act.

50. Section 14 of the HMDA Act bestows the power to

sanction the Plan upon the government. According to

Section 14(2) of the HMDA Act, the Plan shall come into

force from the date of its publication in the Gazette.

51. Section 15 of the HMDA Act dealing with the

modifications to the Metropolitan Development Plan and

Investment Plan, is as under:-

15. (1) The Metropolitan Development
Authority or the Government, as the case may be,
may make such modifications to the Metropolitan
Development and Investment Plans as it may think
fit and which in its opinion are necessary.

(2) The Metropolitan Commissioner shall prepare a
report together with necessary plan, any such
modification and submit to the Government for
approval.

(3) Before making any modifications to the
Metropolitan Development Plan and Investment
Plan, the Metropolitan Development Authority, or
the Government, as the case may be, shall publish
a notice in at least two popular local newspapers
and Telangana Gazette inviting objections and
suggestions from the public specifying such date
in the notice and for examining the proposals and
report and shall consider all objections and
suggestions that may be received by the
Metropolitan Development Authority or
Government.

(4) Every modification made under the provisions
of this section shall be published in the Telangana
Gazette and newspapers and the modifications
shall come into operation from the date of
publication of such notification in the Telangana
Gazette and newspapers.

66

(5) The Metropolitan Development Authority shall
levy such fees and conversion charges from the
owners as applicable and as may be prescribed in
any such modification effected to the Metropolitan
Development Plan and Investment Plan.

52. Section 18 of the HMDA Act is as under:-

18. All development powers of land to
vest with Metropolitan Development
Authority:- (1) Notwithstanding anything
contained in any other law, all development powers
of land shall vest in Metropolitan Development
Authority.

(2) After the coming into operation of the
Metropolitan Development and Investment Plan, or
any area development plan in an area, no person
or body shall use or be permitted to use any land or
carry out any development in that area unless the
development is in conformity with the Metropolitan
Development Plan and Metropolitan Investment
Plan, area level development plans and notified
schemes.

53. The relevant portions of Section 19 of the HMDA

Act, dealing with development permission which is

mandatory for undertaking development, are as under:-

19. Subject to the provisions of this Act, no
development or institution of use or change of use
of any land shall be undertaken or carried out in
the metropolitan region,-

(1) without obtaining a Development Permission
Order from the Metropolitan Development
Authority:-

(i) certifying that the proposed development is
in conformity with the metropolitan
development plan and investment plan or
area level development plan or where there is
no such plan, such a scheme be integrated
with the surrounding area and
rules/regulations;

67

(ii) subject to development conditions that are
applicable and required to be complied;

(iii) the development charges as leviable under
this Act and other fees and charges leviable
have been paid to the Metropolitan
Development Authority.

(2) without obtaining a building permission from the
local authority in case of developments involving
civil construction in accordance with the relevant
local body Act, rules, regulations, orders, bye-laws
and which shall be in conformity with sub-section
(1) and conditions therein:

54. Moreover, even Section 29 of the Act, which deals

with preparation of development scheme, further imposes a

duty upon the HMDA to prepare a development scheme

while “making provision for preservation and protection of

heritage sites and buildings”.

55. The relevant provisions of Section 57 of the

HMDA Act is as under:-

57. (1) The Metropolitan Development
Authority may, with the previous approval of the
Government, make regulations consistent with this
Act and the rules made there-under, to carry out,
the purposes of this Act and without prejudice to
the generality of this power, such regulations may
provide for:-

(i) xxx

(ii) the plan programmes of the Metropolitan
Development Authority, stages of
implementation of the Statutory Development
Plan, the agencies and departments
responsible for implementation of the
Statutory Development Plan;

(iii) xxx

(iv) xxx

(v) xxx

(vi) xxx
68

(vii) xxx

(viii) xxx

(xi) any other matter which is required to be
provided by regulations.

56. A bare perusal of these provisions clearly reveals

the following facets:-

Firstly, after constituting the HMDA under Section 4

of the HMDA Act, Section 6 bestows a duty upon the HMDA

to prepare the Metropolitan Development Plan. Likewise,

Section 12 of the HMDA Act empowers the Development

Authority to “undertake the preparation of area level

development plans”. These plans are generally called the

Zonal Plans.

Secondly, Section 18 of the HMDA Act invests “all

development power of land” in the Development Authority.

Thirdly, while preparing the Master Plan, Section 11

of the HMDA Act requires the Development Authority to

keep in mind the preservation, conservation and

development of areas of “historic and archaeological

interests”. Similarly, while preparing the Zonal Plans,

Section 29 of the HMDA Act, requires the HMDA to make

provisions for “preservation and protection of heritage sites

and buildings”. Thus, the preservation and protection of

heritage sites and buildings is an essential function of the

HMDA.

69

Fourthly, once a Master Plan is approved by the

government and is published in the Gazette, according to

Section 14 (2) of the HMDA Act, “the plan shall come into

force from the date of its publication in the Gazette.”

Fifthly, although both HMDA and the government do

have the power to modify the Master Plan, if any

modification needs to be made, the procedure prescribed by

Section 15 of the HMDA Act necessarily has to be followed.

It is pertinent to note that Section 15(3) of the HMDA Act,

dealing with modification of a development plan, uses the

word “shall publish a notice in at least two popular local

newspapers and Telangana Gazette.” It further requires the

Development Authority or the government, as the case may

be, to consider “all objections and suggestions that may be

received”. The use of the word “shall” clearly indicates that

the provision is a mandatory one.

Sixthly, Section 19 of the HMDA Act is also mandatory

in nature. It requires certain procedure to be followed

before the land use can be changed.

Seventhly, the power to frame regulations under

Section 57 of the HMDA Act is similar to the power

bestowed upon on the HUDA under Section 59 of the

Urban Areas Act. Moreover, the power is bestowed only

upon HMDA, and not upon the government. Since the
70

power to promulgate a regulation is only with the HMDA,

ipso facto the power to repeal is only confined to the HMDA.

Hence, the power to repeal is not bestowed upon the

government.

57. As mentioned above, admittedly, the Master Plan,

2010 was prepared by the HMDA while invoking its powers

under Section 11 of the Act. Once the Master Plan was

sanctioned by the government, it immediately came into

effect upon its publication. Meanwhile, by invoking its

powers under Section 57 of the HMDA Act, the Zoning

Regulations, 2010 was framed by HMDA.

58. Therefore, the contention raised by the learned

Additional Advocate General that a Zoning Regulation,

being a subordinate legislation, does not have the force of

law, such a contention is highly misplaced. Such an

argument ignores the fact that urban planning laws,

including Zoning Regulations, emanate from certain

provisions of the Constitution of India. Moreover, a Zoning

Regulation is a statutory regulation. Therefore, a Zoning

Regulation not only derives its legitimacy and legal

forcibility from the parental Act, but equally derives its

existence and authority from the constitutional provisions.

It, indeed, has the force of law.

71

59. As mentioned above, HUDA had framed the Zonal

Regulations, 1981 under Section 59 of the Urban Areas

Act. However, it was noticed in 1985 that despite the

enabling provision of Section 39 of the Urban Areas Act,

which would enable the State to constitute an Urban Art

Commission, the said Commission was never constituted

by the State government. Moreover, in the regulations

already formulated in 1981, there was no provision for

protecting the “heritage buildings” and the “heritage sites”,

which were located within Hyderabad. Therefore, realizing

the gap in the law, and in order to fill up the said lacunae,

while invoking its power under Section 59 of the Urban

Areas Act, on 18.08.1995 the HUDA formulated Regulation

13 of the Zoning Regulations, 1981. It sent the said

regulation for approval to the government. By G. O. No.

542, dated 14.12.1995 the said regulation was notified only

upon the approval of the government. However, it is

essential to note that the regulation was formulated not by

the government, but by HUDA, that too after invoking its

power under Section 59 of the Urban Areas Act.

60. The essential provisions of Regulation 13 of the

Zoning Regulations, 1981 are as under:-

ANNEXURE

Under sub-section (1) of Section 59 of the Andhra Pradesh
Urban Areas (Development) Act, 1975 (Act No.1 of 1975)
72

the Hyderabad Urban Development Authority with the
previous approval of the Government hereby makes the
following amendment to the Hyderabad Urban
Development Authority Zoning Regulations 1981 by
addition of a new regulation, for conservation of Historical
areas and the buildings thereon in Hyderabad City with
no financial commitment on the Government or Hyderabad
Urban Development Authority.

AMENDMENT

In the said Zoning Regulations, after zoning
regulation No.12, the following regulation shall be added
namely:-

CONSERVATION OF LISTED BUILDINGS, AREAS,
ARTEFACTS, STRUCTURES AND PRECINCTS OF
HISTORICAL AND/OR AESTHETICAL AND/OR
ARCHITECTURAL AND/OR CULTURAL VALUE (HERITAGE
BUILDINGS AND HERITAGE PRECINCTS) INCLUDING
ROCK FORMATIONS:

1. Applicability: This regulation will apply to those
buildings, artefacts, structures and/or precincts of
historical and/or aesthetical and/or architectural and/or
cultural value (hereinafter referred to as Heritage buildings
and Heritage Precincts) which will be listed in
notification(s) to be issued by the Government.

The Authority shall invite public objections and
suggestions in three local daily newspapers before
finalizing the list. Restrictions on Heritage Buildings and
Heritage Precincts shall be in force with effect on and from
the date of first notification.

2. Restriction on Development/Redevelopment/
Repairs, etc:

(i) No Development or redevelopment or engineering
operation or additions, alterations, repairs, renovation
including the painting of buildings, replacement of special
features or demolition of the whole or any part thereof or
plastering of said Heritage buildings or Heritage Precincts
shall be allowed except with the prior written permission
of the Vice-Chairman, Hyderabad Urban Development
Authority. The Vice-Chairman, Hyderabad Urban
Development Authority shall act on the advice of/in
consultation with the Heritage Conservation Committee to
be appointed by Government (hereinafter called “the said
Heritage Conservation Committee):

Provided that in exceptional cases, for reasons to be
recorded in writing, the Vice-Chairman, Hyderabad Urban
Development Authority may over rule the recommendation
of the Heritage Conservation Committee.
73

Provided further that the power to overrule the
recommendations of the Heritage Conservation Committee
shall not be delegated by the Vice-Chairman, Hyderabad
Urban Development Authority to any other officer.

(ii) XXXX

3. Preparation of list of Heritage buildings and
Heritage Precincts: The said list of buildings, artefacts,
structures and precincts of historical, and/or aesthetical,
and/or architectural and/or cultural value including rock
formations to which this regulation applies shall not form
part of the Regulation for the purpose of Section 59 of the
Andhra Pradesh Urban Areas (Development) Act, 1975.
Modifications to the list shall not amount to modification to
Zoning Regulations. This list may be supplemented,
altered, deleted or modified from time to time by
Government on receipt of proposals from the Vice-
Chairman, Hyderabad Urban Development Authority or
from the said Heritage Conservation Committee, or by
Government sui motu, provided that before the list is
supplemented, altered, deleted or modified, objections and
suggestions from the public be invited and duly
considered by the Vice-Chairman, Hyderabad Urban
Development Authority and/or by Government.

4. Power to Alter, Modify or Relax Regulations: With
the approval of Government and after consultation with
the said Heritage Conservation Committee, the Vice-
Chairman, Hyderabad Urban Development Authority shall
have the power to alter, modify or relax the provisions of
other Regulations of the Hyderabad Urban Development
Authority Zoning Regulations, 1981 (hereinafter referred to
as “the said Regulations”) if it is needed for the
conservation, preservation or retention of historical,
aesthetical, cultural or architectural quality of any
Heritage building or Heritage Precinct including rock
formations.

5. Permission to demolish or to make major alterations
to Heritage Buildings may be granted only in exceptional
cases by the Vice-Chairman, Hyderabad Urban
Development Authority after obtaining the opinion of
Heritage Conservation Committee and after inviting public
objections and suggestions in three local daily
newspapers.

61. Admittedly, after following the said provisions and

upon the recommendations made by the Committee, by

G.O.Ms.No.102, dated 23.03.1998, 137 buildings were

declared as “protected heritage buildings”. At serial No.47,
74

this list includes the Irrum Manzil. Eventually, fourteen

more heritage buildings were added to this list. Thus, in

total 151 buildings were classified as “protected heritage

buildings”.

62. Undoubtedly, in the Master Plan of 2010, Irrum

Manzil is shown as falling within the Special Reservation

Zone and as being a “protected heritage building”.

63. The learned AAG has tried to justify the repeal of

Regulation 13 of the Zoning Regulations, 1981 by

G.O.Ms.No. 183, dated 07.12.2015 on three grounds:-

Firstly, the Regulation 13 of the Zoning Regulations,

1981 was inconsistent with, and contrary to the Urban

Areas Act.

Secondly, the inconsistency emanated from the fact

that the Urban Areas Act could not deal with other Entries

of List-II. The Urban Areas Act emanated from Entry 5,

List-II of the Seventh Schedule of the Constitution of India.

Moreover, under SectionArticle 243-W, the municipality must

confine itself to the fields enumerated in the Twelfth

Schedule of the Constitution of India. Therefore, the Urban

Development Authority could not have encroached upon

Entry 12, List-II of the Seventh Schedule of the

Constitution of India, which deals with “the ancient and

historical monuments”. Hence, in the garb of Regulation
75

13 of the Zoning Regulations, 1981, the Urban Areas Act

could not have covered the field under Entry 12, List-II of

the Seventh Schedule of the Constitution of India. Thus,

the Urban Areas Act cannot cover two different Entries of

List-II of the Seventh Schedule of the Constitution of India.

Thirdly, by letter dated 16.04.2015, HMDA had

requested the government to repeal the Regulation 13 of

the Zoning Regulations, 1981 as it was causing certain

confusion. Therefore, on the request of HMDA, by G.O.Ms.

No. 183, dated 07.12.2015 the government had repealed

Regulation 13 of the Zoning Regulations, 1981 from its very

inception.

64. It is, indeed, a misnomer that there is

inconsistency between provisions of the Urban Areas Act,

and Regulation 13 of the Zoning Regulations, 1981. While

enacting the Urban Areas Act, the legislature was well

aware of the fact that urban areas would contain “historical

monuments” and “historical sites”. Therefore, for their

preservation, conservation and restoration, the legislature

had enacted Section 39 of the Urban Areas Act, wherein it

had prescribed the constitution of the Urban Art

Commission, and had equally bestowed the duty upon the

Commission to recommend for preservation and

conservation of “historical buildings” and “historical sites”
76

lying within the urban areas. However, as no Urban Art

Commission was ever constituted, Section 39 of the Urban

Areas Act was never implemented. Instead, Regulation 13

of the Zonal Regulations, 1981 was framed under Section

59 of the Urban Areas Act. Hence, Regulation 13 of the

Zonal Regulations, 1981 furthers one of the goals of the

Urban Areas Act.

65. Much has been discussed and debated about the

differences between a “historical monument” and a

“heritage building” before this Court. The learned AAG has

vehemently argued that “historical monuments” do not

include “heritage buildings”. Therefore, there is

inconsistency between Section 39 of the Urban Areas Act,

which deals with “historical monuments”, and Regulation

13 of the Zonal Regulations, 1981, which deals with

“heritage building”. However, the said argument is

fallacious. For, the word “historical monuments” is the

genus, whereas “heritage buildings” is a species belonging

to the said genus. It is not necessary that “historical

monuments” should consist only of “buildings”. For, even

“pre-historical caves” or “cave temples”, or the “ruined

walls” of a fortress, or a “parapet” are “historical

monuments”, but are not necessarily “heritage buildings”.

However, in order for a building to be classified as a
77

“heritage building”, it has to be “historical” in its existence,

significance and value. For, a recently constructed

shopping mall cannot be termed as a “heritage building”.

But, on the other hand, the ruins of “shops” still existing in

the city of Hampi, the capital of Vijaynagar Empire, are

both “heritage buildings” and “historical monuments”. The

very classification “heritage building” is a clear indication

that the building is something that has been “inherited by

the present generation from their ancestors”. Therefore,

the distinction made by learned AAG between a “historical

monument” and a “heritage building” is highly artificial and

misplaced.

66. Therefore, one of the areas being covered by the

Urban Areas Act was to protect the “historical

monuments/heritage buildings”, which were part of the

urban development area. Thus, Regulation 13 of the Zoning

Regulations, 1981 is, in fact, in consonance with one of the

aims of the Urban Areas Act.

67. Moreover, in the case of Hari Kishan Bhargav

(supra), the Hon’ble Supreme Court has opined that “it is

not necessary that law must deal with only one Entry in the

List. In fact, a law can deal with various Entries in a given

List”. Hence, the learned AAG is not justified in claiming

that since the Urban Areas Act originated from Entry 5,
78

List-II of the Seventh Schedule of the Constitution of India,

it could not have dealt with a filed defined by Entry 12,

List-II of the Seventh Schedule of the Constitution of India.

It is, indeed, trite to state that many Entries in the List-II of

the Seventh Schedule of the Constitution of India may be

co-related to each other. And, an Act, which is almost like a

Code, would necessarily have to cover various fields defined

by different Entries in List II of the Seventh Schedule of the

Constitution of India.

68. Since Entry 5, List II of the Constitution of India

deals with Municipalities and their powers, since the

preservation and conservation of historical

monuments/heritage buildings are an integral part and

parcel of urban planning, Urban Areas Act necessarily has

to deal with preservation, conservation and restoration of

“historical monuments/ heritage buildings”. Therefore, the

learned AAG is unjustified in claiming that the Urban Areas

Act could not have “encroached” upon the field defined by

Entry 12, List II of the Seventh Schedule of the

Constitution of India in the garb of Regulation 13 of the

Zoning Regulations, 1981. Thus, the argument raised by

the learned AAG that there is an inconsistency between the

Urban Areas Act and Regulation 13 of the Zonal

Regulations, 1981 as both are covered by two different
79

Entries of List-II of the Seventh Schedule of the

Constitution of India is also untenable.

69. Furthermore, the said contention is an after-

thought. For, G.O. Ms. No. 183, dated 07.12.2015, while

repealing Regulation 13 of the Zoning Regulations, 1981

does not mention the “constitutional mismatch”. Therefore,

it is a fresh plea which has suddenly mushroomed in order

to defend the action of the respondents.

70. The learned AAG has also harped on the request

made by the HMDA for repealing Regulation 13 of the

Zoning Regulations, 1981 to the government in its letter

dated 16.04.2015. The letter dated 16.04.2015 is

reproduced as under:-

Letter No.000336/CMO/Plg/HMDA/2015
Date:16.04.2015

To
The Principal Secretary to Government
MA UD Department,
Government of Telangana,
Secretariat,
Hyderabad.

Sir,

Sub: HMDA – Planning Dept – HUDA Zoning Regulations
1981 – Reg.

Ref: Govt. Letter No.4824/1/2015-1 dt.15.4.2015
***
With reference to the Government letter cited above
following is submitted.

Hyderabad Metropolitan Development Authority has
been constituted on 25.8.2008 vide G.O.Ms. No. 570 MA
UD Department with an extent of 7,228 Sq.Kms. The
80

erstwhile Development Authorities which were merged in
HMDA are:

1) Hyderabad Urban Development Authority

2) Hyderabad Airport Development Authority

3) Cyberabad Development Authority and

4) Buddha Poornima Project Authority

The Jurisdiction of H.M.D.A. extends to 55 Mandals and
5 Districts as given below:

S.No Name of the No. of Mandals No. of
District Villages
1 Medak 10 Mandals 254
2 Ranga Reddy 22 Mandals 452
3 Mahaboobnagar 2 Mandals 28
4 Nalgonda 5 Mandals 115
5 Hyderabad All 16 Mandals

The jurisdiction of H.M.D.A. also covers GHMC area,
Bhongir Sangareddy Municipalities and Badangpet,
Ibrahimpatnam, Medchal, Pedda Amberpet, Shadnagar
Nagar Panchayats. Over a period of time, Master Plans
along with Zoning Regulations have been prepared for
entire H.M.D.A. area and same have been approved by the
Government as detailed below:

1) Master Plan for Cyberabad Development Authority
Area approved vide G.O.Ms.No. 538 MA Dated
29.10.2001.

2) Master Plan for Non-Municipal Area of the erstwhile
Hyderabad Urban Development Authority area (excluding
the erstwhile MCH area and the newly extended area of
HUDA) approved vide G.O.Ms. No.288 MA dated
30.4.2008.

3) Master Plan for Hyderabad Airport Development
Authority area approved vide G.O.Ms. No.287 MA dated
30.4.2008.

4) Master Plan for Outer Ring Road Growth Corridor
Area approved vide G.O.Ms. No.470 MA dated 9.7.2008.

5) Master Plan for erstwhile MCH area (Core area of
GHMC) approved vide G.O.Ms. No.363 MA dated
21.8.2010.

6) Hyderabad Metropolitan Development Plan – 2031 for
Hyderabad Metropolitan Region approved vide G.O.Ms.
No.33 MA dated 24.1.2013.

As stated above, each Master Plan is having separate
Zoning Regulations i.e. Land Use Zoning Regulations and
Building Regulations. Land Use Zoning specifies the
activities permissible in each zone and while considering
any layout development permissions in the above areas
the respective Zoning Regulations are being followed.
Similarly Zoning Regulations also consists of Building
81

Regulations which specifies the Rules and Regulations to
be followed while considering any building permission.
However, after issue of Common Building Rules – 2012 in
G.O.Ms. No.168 MA dated 7.4.2012, the Building Rules
specified in Zoning Regulations have become in fructuous.

In this regard, it is submitted that prior to the approval
of above 6 Master Plans and Zoning Regulations annexed
to each Master Plan, Bhagyanagar (Hyderabad) Urban
Development Authority Zoning Regulations, 1981 issued
by the Government in G.O.Ms.No.916 MA dated 11.8.1981
and as amended from time to time were in force (which
also consists of Land Use Zoning Regulations Building
Regulations). However, after approval of the above 6
Master Plans along with Zoning Regulations annexed to
each Master Plan, erstwhile HUDA Zoning Regulations
1981 as amended from time to time are not in operation
except Regulation 13 of said Zoning Regulations which
provides for Conservation of Historical Buildings and
Areas in Hyderabad city. But the HUDA Zoning
Regulations 1981 are not repealed so far. Therefore, to
have better clarity and to avoid any discrepancy in
interpretation of Zoning Regulations it would be
appropriate to repeal the HUDA Zoning Regulations 1981
and its amendments issued from time to time including all
the Government orders existing as on date issued under
the said regulations.

For conservation of Historical Buildings / Areas /
Heritage precincts and Areas of tourism importance in
HMDA Area / entire Telangana State Government may
consider to issue separate regulations, if necessary, by
appointing a Committee for identification of Historical
Buildings / Areas / Heritage precincts and Areas of
tourism importance afresh in the entire State of Telangana.

The above is submitted to the Government for issue of
fresh orders in this matter.

Yours faithfully

Metropolitan Commissioner, HMDA

(Emphasis Added).

71. A bare perusal of the letter clearly reveals that

HMDA has raised the following three points in the letter:-
82

Firstly, there are certain Master Plans and

Regulations, which were brought into existence after the

Zoning Regulations, 1981.

Secondly, “except Regulation 13 of said Zoning

Regulations” the remaining part of Zoning Regulations,

1981 is non-operational. However, the existence of the said

Zoning Regulations is causing confusion. Therefore, the

said Zoning Regulations should be repealed. However,

while recommending the repeal of Zoning Regulations,

1981, an exception has been carved out, namely Regulation

13 of the said Zoning Regulation.

Thirdly and most importantly, the HMDA has

requested the government for “appointing a Committee for

identification of Historical Buildings / Areas / Heritage

precincts…”. This request clearly proves that the intention

of HMDA was, in fact, to strengthen Regulation 13 of the

Zoning Regulations, 1981 and to make it more vibrant.

For, without the existence of a Committee, Regulation 13 of

the Zoning Regulations, 1981 was a toothless tiger.

Moreover, the said request seems to have been made

keeping in mind that in Writ Petition No. 6820 of 2008, by

order dated 21.04.2014, a learned Single Judge of the

former High Court of Andhra Pradesh, and Writ Petition

(PIL) No. 360 of 2015, a learned Division Bench of the
83

former High Court of Judicature at Hyderabad for the State

of Telangana and the State of Andhra Pradesh had directed

the government to reconstitute the Heritage Conservation

Committee, as the Committee had stopped functioning

from 16.03.2013. Therefore, the letter dated 16.04.2015

belies the claim made by learned Additional Advocate

General that there was a “request from the HMDA to repeal

Regulation 13 of the Zoning Regulations, 1981”. On the

contrary, the request was to strengthen and to make

Regulation 13 of the Zoning Regulations, 1981 more

functional, and to appoint a Committee, in order to add

teeth to Regulation 13 of the Zonal Regulations 1981.

Hence, there is no request to repeal Regulation 13 of the

Zonal Regulations, 1981.

72. Furthermore, even the said argument is an

imaginative one. For, G. O. Ms. No. 183, dated 07.12.2015,

by which, Regulation 13 of the Zoning Regulations, 1981

was repealed by the government, nowhere mentions the

letter dated 16.04.2015. Therefore, the arguments raised

by the learned AAG are like feeble props to hold up a

collapsing wall.

73. As stated above, the power to frame and the

power to repeal a regulation, promulgated under Section 59

of the Urban Areas Act, is/was only with the Development
84

Authority, namely HUDA. The power to frame, and to

repeal a regulation is not even vested with the government.

Therefore, obviously, the government could not have

repealed the regulation. It is only HUDA that could have

done so. But, in the present case, it is the government

which has repealed Regulation 13 of the Zoning

Regulations, 1981. Thus, clearly the repeal of Regulation

13 of the Zoning Regulations, 1981 is legally

unsustainable.

74. It is to be noted that in the present writ petitions,

the repeal of Regulation 13 of the Zoning Regulations, 1981

is certainly not in question. But, as the learned AAG has

vociferously defended the repeal of Regulation 13 of the

Zoning Regulations, 1981, and has argued that once the

said regulation is repealed, the protection thereunder

quickly disappears, the petitioners are justified in orally

questioning the validity of the said repeal. It is in these

circumstances that the discussion made hereinabove is to

be understood. It may also be pointed out, at this

juncture, that the repeal of Regulation 13 of the Zoning

Regulations, 1981 is already challenged before this Court

in one of the PILs, namely W.P. (PIL) No. 80 of 2019, which

is also filed for challenging the impugned decision of the
85

Cabinet as in the present cases. The said PIL is dealt with

separately.

75. Mr. Nalin Kumar, the learned counsel, and Mr.

D. Prakash Reddy, the learned Senior Counsel vehemently

argued that the mentioning of Regulation 13 of the Zoning

Regulations, 1981 in Regulation 9(A)(ii) of the Zoning

Regulations, 2010 is “by incorporation”, and not “by

reference”. A see-saw of arguments has been offered from

both the sides. For, Mr. Ramachandra Rao, the learned

AAG has strenuously pleaded that the mentioning of

Regulation 13 of the Zoning Regulations, 1981 in

Regulation 9(A)(ii) of the Zoning Regulations, 2010 is

merely “by reference” and not “by incorporation”.

76. In order to understand the difference between

“legislation by incorporation”, and “legislation by reference”,

it would be beneficial to refer to some of the judgments of

the Hon’ble Supreme Court on these two doctrines.

77. In the case of SectionMaharashtra State Road

Transport Corporation v. State of Maharashtra26, the

Hon’ble Supreme Court has pointed out as under:-

“It is a well-established legislative practice to
borrow the provisions of an earlier Act on a
particular subject by making a broad reference to
the earlier Act or some or most of its provisions
therein so as to make them applicable to the
relevant subject-matter dealt with by the later

26
(2003) 4 SCC 200
86

statute. This is done primarily as a matter of
convenience in order to avoid verbatim repetition
of the provisions of the earlier Act”.

78. In the case of Nagpur Improvement Trust

(supra), the Apex Court had opined that “the law on the

subject is well settled. When an earlier Act or certain of its

provisions are incorporated by reference into a later Act, the

provisions so incorporated become part and parcel of the

later Act as if they had been bodily transposed into it”.

79. However, in the case of Bharat Cooperative

Bank (Mumbai) (supra), the Apex Court had also expressed

a doubt and had opined as under:

However, the distinction between
incorporation by reference and adoption of
provisions by mere reference or citation is not too
easy to highlight. The distinction is one of
difference in degree and is often blurred. The fact
that no clear-cut guidelines or distinguishing
features have been spelt out to ascertain whether
it belongs to one or the other category makes the
task of identification difficult. The semantics
associated with interpretation play their role to a
limited extent. Ultimately, it is a matter of probe
into legislative intention and/or taking an insight
into the working of the enactment if one or the
other view is adopted. Therefore, the kind of
language used in the provision, the scheme and
purpose of the Act assume significance in finding
answer to the question. The doctrinaire approach
to ascertain whether the legislation is by
incorporation or reference is, on ultimate analysis,
directed towards that end.

80. Moreover, in the case of Nagpur Improvement

Trust (supra), the Hon’ble Supreme Court further pointed

out as under:-

87

The incorporation of an earlier Act into a
later Act is a legislative device adopted for the
sake of convenience in order to avoid verbatim
reproduction of the provisions of the earlier Act
into the later. But this must be distinguished from
a referential legislation which merely contains a
reference or the citation of the provisions of an
earlier statute. In a case where a statute is
incorporated, by reference, into a second statute,
the repeal of the first statute by a third does not
affect the second. The later Act along with the
incorporated provisions of the earlier Act
constitute an independent legislation which is not
modified or repealed by a modification or repeal of
the earlier Act. However, where in later Act there
is a mere reference to an earlier Act, the
modification, repeal or amendment of the statute
that is referred, will also have an effect on the
statute in which it is referred. It is equally well
settled that the question whether a former statute
is merely referred to or cited in a later statute, or
whether it is wholly or partially incorporated
therein, is a question of construction.

81. Thus, in case of “legislation by incorporation”

despite the death of the parent Act, its offspring survives in

the incorporating Act. However, in “legislation by

reference”, the repeal of the parent Act automatically leads

to the demise of the offspring.

82. Furthermore, in the case of Madhavrao Damodar

Patil (supra), the Apex Court has further pointed out that

“ordinarily if an Act is referred to by its title, it is intended to

refer to that Act with all the amendments made in it upto the

date of reference”. (Emphasis added). Similar views have

also been expressed in the case of Mahindra and

Mahindra Ltd. (supra). In the said case, relying on the
88

observation made by Lord Esher, M.R. in In re Wood’s

Estate27, and on Lord Justice Brett in the case of Clarke v.

Bradlaugh28, the Apex Court opined that “Once the

incorporation is made, the provision incorporated becomes

an integral part of the statute in which it is transposed and

thereafter there is no need to refer to the statute from which

the incorporation is made and any subsequent amendment

made in it has no effect on the incorporation statute”.

(Emphasis added)

83. Drawing a distinction between “legislation by

reference” and “legislation by incorporation” in the case of

Mohan Singh (supra), the Hon’ble Supreme Court has

clearly pointed out the distinction as under:

A distinction has to be drawn between a
mere reference or citation of one statute into
another and incorporation. In the case of mere
reference of citation, a modification, repeal or re-
enactment of the statute that is referred will also
have effect for the statute in which it is referred;
but in the latter case any change in the
incorporated statute by way of amendment or
repeal has no repercussion on the incorporating
statute.

84. Lastly, in the case of Maharashtra State Road

Transport Corporation (supra), the Apex Court has opined

as under:-

27

(1886) 31 Ch D 607
28
(1881) 8 Q BD 63, 69
89

When such legislative device is adopted, the
relevant provisions of the earlier Act will apply
mutatis mutandis to the matters governed by the
later Act. But, the difficulty in construction would
arise when the earlier Act is repealed or
amended/modified. The intricate question then
would be whether the repeal or amendments
should be ignored and the borrowed provisions
should be read as they were at the time of
enactment of later Act OR the provisions of earlier
Act should be applied subject to subsequent
amendments/modifications. If there is a definite
indication in the later Act as to the applicability or
otherwise of subsequent amendments in the Act
referred to, no difficulty arises; but, the problem
arises when there is no such indication. It is here
that we come across two allied but qualitatively
different concepts of statutory interpretation
known as incorporation by reference and mere
reference or citation of earlier statute in the later
Act. In the former case, any change in the
incorporated statute by way of amendment or
repeal has no effect on the incorporating statute.
In other words, the provisions of the incorporated
statute as they stood at the relevant time when
incorporating statute was enacted will ever
continue to be read into that later statute unless
the legislature takes a positive step to amend the
later statute in tune with the amendments.
However, the legal effect is otherwise in the case
of a statute which merely makes a reference to
the provisions of an earlier statute. In that case,
the modification of the statute from time to time,
will have its impact on the statute in which it is
referred to. The provisions in the earlier statute
with their amendments will have to be read into
the later enactment in which they are referred to
unless any such subsequent amendment is
inconsistent with a specific provision already in
existence. (Emphasis added).

85. Therefore, while adjudicating on the issue whether

the mentioning of Regulation 13 of the Zonal Regulations,

1981 in the Regulation 9 (A) (ii) of the Zonal Regulations,

2010 is by way of “incorporation” or by way of “reference”,
90

one would have to keep the principles aforementioned in

mind.

86. Regulation 9(A) of the Zoning Regulations, 2010

is as under:-

9. Special Reservation Use Zone

A) Sites specifically earmarked as Heritage
Sites

i) In notified heritage buildings and heritage
precincts, it is necessary to obtain specific
clearance from HMDA after consultations by
heritage conservation committee before
undertaking certain kinds of development and
redevelopment as specified by the government or
issued as specific guidelines. Special exemption
from land use controls is allowed subject to
approval from the government in the interest of
conservation of the heritage buildings and
adaptive uses area allowed with concurrence
from the heritage committee subject to mandated
public safety requirements.

ii) The heritage regulations issued vide
G.O.Ms. No. 542, MA dated 14.12.1995 and other
relevant orders/amendments issued by the
government from time to time shall be applicable.

87. A bare perusal of the above Regulation clearly

reveals that Regulation 13 of the Zoning Regulations, 1981

has been referred to by its title, namely G.O.Ms. No. 542

MA, dated 14.12.1995. Thus, instead of repeating all the

provisions of Regulation 13 of the Zoning Regulations,

1981, it has been referred to by its title. Hence, all the

provisions of Regulation 13 of the Zoning Regulations, 1981

have been lifted and incorporated in Regulation 9(A)(ii) of
91

the Zoning Regulations, 2010 as though it were written by

pen on paper.

88. Moreover, Regulation 9(A)(i) of the Zoning

Regulations, 2010 retains the soul of Regulation 13 of the

Zoning Regulations, 1981, when it paraphrases Regulation

13 (4) of the said Regulations. Both the provisions provide

“exemption from land use controls in the interest of

conservation of the heritage buildings”. Thus, the intention

to “incorporate” Regulation 13 of the Zoning Regulations,

1981 is crystal clear.

89. Furthermore, Regulation 9(A) of the Zoning

Regulations, 2010 modifies Regulation 13(2)(i) of the Zoning

Regulations, 1981. Juxtaposition of these two provisions

clearly reveals that under the latter provision a prior

written permission from the Vice-Chairman, HUDA was

required before any development or redevelopment,

alterations, repairs, renovation or demolition of a building

could begin. The Vice-Chairman, HUDA, in turn, was duty

bound to act on the advice of/in consultation with the

Heritage Conservation Committee. Only in exceptional

cases, the Vice-Chairman could over rule the

recommendations of the Committee. However, in the

former case, a specific clearance from HMDA is required to

be obtained. The said clearance can be given “only after
92

consultation by Heritage Conservation Committee”. Thus,

the word used “in consultation” implies that the advice of

the Heritage Conservation Committee is not binding upon

the HMDA, whereas under Regulation 13(2) of the Zoning

Regulations, 1981, the recommendation of the Committee

was, indeed, binding on the HUDA, except in exceptional

cases. Thus, Regulation 9(A)(i) of the Zoning Regulations,

2010 modifies Regulation 13 of the Zoning Regulations,

1981 to a limited extent. Thus, it is a case of “legislation by

incorporation”.

90. Moreover, G. O. Ms. No. 183, dated 07.12.2015 is

as under:-

ORDER:

1. Andhra Pradesh Urban Areas (Development)
Act, 1975 (Act No.1 of 1975) was enacted to deal
with urban areas development in the then existing
State of Andhra Pradesh. Section 59 of the said
Act provides for making regulations consistent
with the Act and Rules made thereunder to carry
out purposes of the Act. Subsequently, Regulation
13 was added by way of amendment to the
Hyderabad Urban Development Authority Zoning
Regulations vide G.O.Ms. No. 542, dated
14.12.1995. The said Regulation provides
scheme of identification of conservation and
heritage and historical buildings/precincts
thereon. Subsequently, in terms of Regulation,
the Government issued notification to the said
effect by notifying certain buildings/precincts.

2. After formation of State of Telangana, the
Government have considered the issue and felt
that the Regulation 13 is inconsistent with the
SectionA.P. Act 1/1975, and decided to delete Regulation

13.
93

3. Accordingly, the matter was referred to the
learned Advocate General. The Learned Advocate
General also expressed his opinion that there is
no substantive provision dealing with the heritage
or historical precincts and conservation thereof in
the SectionA.P. Act 1/1975. Accordingly, Regulation 13
is inconsistent with the Act and Rules made
thereunder. Therefore, no purpose will be served
to carry out the provisions of SectionA.P. Act 1/1975.
Further the effect of Regulation notifying the
buildings will also affect the property rights of the
owners and accordingly the Regulation 13 itself is
ultra vires of Section 59 of Act 1/1975.

4. In view of the above circumstances, after
careful consideration of the matter, the
Government have taken a decision to delete the
Regulation 13 since the date of its inception and
accordingly hereby delete the Regulation 13 since
the date of its inception.

5. The Government also decided to take
appropriate measures in respect of the subject
matter after ascertaining the opinion of experts in
the matter.

91. A bare perusal of G.O.Ms. No. 183, dated

07.12.2015 clearly reveals that Regulation 13 of the Zoning

Regulations, 1981 has been repealed on twin grounds: it is

“inconsistent with the Act” (Urban Areas Act and Rules

made thereunder); secondly, the said regulation adversely

“affects the property rights of the owners”. Therefore,

Regulation 13 of the Zoning Regulations, 1981 is ultra vires

to Section 59 of the Urban Areas Act.

92. However, while repealing Regulation 13 of the

Zoning Regulations, 1981, the government was well aware

of the fact that the said Regulation was mentioned in
94

Regulation 9(A)(ii) of the Zoning Regulations, 2010. Yet,

there is nothing to indicate that there is any intention to

delete the mentioning of Regulation 13 of the Zoning

Regulations, 1981 from Regulation 9(A)(ii) of the Zoning

Regulations, 2010 Although the G.O.Ms. No. 183 has used

the words “accordingly hereby delete the Regulation 13

since the date of its inception”, but nowhere does it indicate

that any mentioning of the said regulation in Zoning

Regulations would also stand automatically deleted.

93. In order to decide whether the mentioning of

Regulation 13 of the Zoning Regulations, 1981 is by way of

“incorporation” or by way of “reference”, one would also

have to deal with the reason why Regulation 13 of the

Zoning Regulations, 1981 is mentioned in the Zoning

Regulations of 2010. As mentioned hereinabove, the

Development Authority not only has to formulate a policy

for protection and conservation of “historical

monuments/heritage buildings”, but also has to conserve

and protect the same. As pointed out above, already a

Special Reservation Zone was demarcated in the Master

Plans of 2010 clearly indicating the “heritage buildings”,

which were covered by Regulation 13 of the Zoning

Regulations, 1981. Therefore, mentioning of Regulation 13

of the Zoning Regulations, 1981 in Regulation 9(A)(ii) of the
95

Zoning Regulations, 2010 is incorporated in the Zoning

Regulations in order to give the Development Authority the

power to deal with these “heritage buildings and heritage

sites” which were falling in the Special Reservation Zones.

94. Moreover, the mentioning of Regulation 13 of the

Zoning Regulations, 1981 is further strengthened by the

procedure to be followed in case of any development or

redevelopment needs to be carried out vis-à-vis heritage

buildings/heritage precincts.

95. Furthermore, as pointed out above, the HMDA

has been strengthened by permitting it to exempt from land

use controls “in the interest of conservation of the heritage

buildings”. Thus, obviously, mentioning of Regulation 13 of

the Zoning Regulations, 1981 is by way of “incorporation”,

and not by way of “reference”.

96. Considering the fact that Regulation 13 of the

Zoning Regulations, 1981 has been mentioned by way of

“incorporation”, obviously any amendment made in the

Regulation 13 of the Zoning Regulations, 1981 post the

date of its “incorporation”, namely post 2010, or its

subsequently repeal, would not adversely affect its

existence in the incorporated Zoning Regulations. Thus,

the repeal of Regulation 13 of the Zoning Regulations, 1981

by G.O.Ms. No. 183, dated 07.12.2015 would not adversely
96

affect the existence of Regulation 13 of the Zoning

Regulations, 1981 in Regulation 9(A)(ii) of the Zoning

Regulations, 2010. In short, Regulation 13 of the Zoning

Regulations, 1981 would continue to survive even when the

parental regulation has died. Regulation 13 of the Zoning

Regulations, 1981, in its incorporated form, in the Zoning

Regulations, 2010 will continue to thrive and will continue

to bestow its protection on the “protected heritage

buildings”, which have been declared as “heritage

buildings” by the government itself.

97. Of course, the learned AAG has repeatedly harped

on the fact that Regulation 9(A) (ii) of the Zoning

Regulations, 2010 further uses the words “other relevant

orders and amendments issued by the government from time

to time shall be applicable”. Thus, according to the learned

AAG once Regulation 13 of the Zoning Regulations, 1981

was repealed “from its very inception”, Regulation 13 of the

Zoning Regulations, 1981, as mentioned in Regulation

9(A)(ii) of the Zoning Regulations, 2010, would, too, stand

automatically repealed.

98. However, such an interpretation ignores the fact

that under Section 59 of the Urban Areas Act the power to

frame and the power to repeal are vested only with the

HUDA, and not with the government. Moreover, under
97

Regulation 13(3) of the Zoning Regulations, 1981, the only

power which is given to the government is to modify the list

of “heritage buildings and heritage precincts”. Therefore,

the words “other relevant orders and amendments issued by

the government from time to time” necessarily refer to the

modification of the list of “protected heritage buildings and

heritage precincts”, and not to the repeal of Regulation 13

of the Zoning Regulations, 1981.

99. Further, even if the government wants to delete or

modify or supplement the list, even then the Vice-

Chairman, Hyderabad Development Authority is required to

invite objections and suggestions from the public and to

duly consider the same. Hence, the learned counsel is

unjustified in claiming that the words “other relevant orders

and amendments issued by the government from time to

time” also refer to G.O.Ms. No. 183, dated 07.12.2015.

100. Furthermore, as discussed above, since the

government does not have the power to repeal Regulation

13 of the Zoning Regulations, 1981, its very repeal is of a

doubtful vintage. But nonetheless, even if for the sake of

argument it is accepted that the repeal was a valid one,

even then such a repeal does not adversely affect the

existence and operation of Regulation 13 of the Zoning

Regulations, 1981 in Regulation 9(A)(ii) of the Zoning
98

Regulations, 2010. For, Regulation 13 of the Zoning

Regulations, 1981 continues to thrive, prosper and exist

within the capsule of Regulation 9(A)(ii) of the Zoning

Regulations, 2010.

101. Moreover, if the contention of the learned AAG

were to be accepted, for the sake of argument, that the

mentioning of Regulation 13 of the Zoning Regulations,

1981 in Regulation 9(A)(ii) of the Zoning Regulations, 2010

is “legislation by reference”, such an interpretation would

lead to anomalous situations. For, the acceptance of the

said argument would imply that the subsequent repeal of

Regulation 13 of the Zoning Regulations, 1981

automatically deletes Regulation 13 of the Zoning

Regulations, 1981 from Regulation 9(A)(ii) of the Zoning

Regulations, 2010. It would further imply that the HMDA

no longer has the power to deal with the “heritage

buildings/heritage sites” falling within the Special

Reservation Zone. Hence, HMDA would lose its control over

the said Zone. Such an interpretation would be contrary to

Section 15(3), Section 18 and Section 19 of the HMDA Act.

Needless to say, that an interpretation which makes the

provisions of law otiose or redundant should not be

accepted. Therefore, the interpretation placed by the AAG

is obviously unacceptable.

99

102. Further, the government would be able to

achieve a modification of the Master Plan and Zonal Plan

without following the requirements of Section 15 of the

HMDA Act. Any interpretation, which would denude and

delete the powers of the HMDA contrary to the provisions of

the HMDA Act, perforce, has to be avoided by this Court.

103. Furthermore, it is a settled principle of law that

what cannot be done directly, cannot be permitted to be

done indirectly by an authority. Since the government

cannot scuttle the authority of the HMDA directly, it cannot

be permitted to do so indirectly in the garb of repealing of

Regulation 13 of the Zoning Regulations, 1981. Thus, the

learned AAG is unjustified in claiming that the mentioning

of Regulation 13 of the Zoning Regulations, 1981 in

Regulation 9(A)(ii) of the Zoning Regulations, 2010 also

stands repealed. Therefore, the interpretation offered by

the learned AAG is clearly unacceptable.

104. Once this Court has concluded that Regulation

13 of the Zoning Regulations, 1981 is, indeed, a “legislation

by incorporation” in the Zoning Regulations, 2010 this

Court need not address the issue whether the benefit of

Section 8 of the Andhra Pradesh General Clauses Act is

said to continue qua the Irrum Manzil even after the repeal

of Regulation 13 of the Zoning Regulations, 1981 or not?
100

The said issue would be germane if this Court were to

conclude that the repeal of Regulation 13 of the Zoning

Regulations, 1981 would also obliterate the mentioning of

Regulation 13 of the Zoning Regulations, 1981 in Zoning

Regulations, 2010. Therefore, this Court refrains from

expressing any opinion about the protection and the benefit

of Section 8 of the Andhra Pradesh General Clauses Act

being given to the Irrum Manzil. Moreover, this Court

need not go into the controversy whether the right or

protection has been subscribed to the Irrum Manzil as “an

accrued right” or as “an abstract right”.

105. The learned AAG has raised two further

contentions: firstly, Regulation 13 of the Zoning

Regulations, 1981 and provisions of Act, 2017 are

inconsistent. Secondly, therefore, both the Act, 2017 and

the Regulation 13 of the Zoning Regulations, 1981 cannot

co-exist peacefully. However, even the said arguments are

unsustainable. For, the Act, 2017 deals with heritage

buildings, their preservation, conservation and restoration.

Similarly, Regulation 13 of the Zoning Regulations, 1981

also deals with the preservation, conservation and

restoration of heritage buildings within the Development

Area of the Hyderabad city. Hence, the purpose and aim of

both the laws is similar in nature, namely to protect,
101

preserve, and maintain “heritage buildings and heritage

sites”. Therefore, there is no conflict between Regulation

13 of the Zoning Regulations, 1981 and Act, 2017.

106. Furthermore, a distinction has to be made

between “a general law”, “a special law”, and “a local law”.

In the case of Justiniano Augusto De Piedade Barreto

(Supra), the Hon’ble Supreme Court has drawn a

distinction between “a general law”, “a special law” and “a

local law”. According to the Apex Court, “a special law” is

a law relating to a particular subject and is applicable to a

large area, while “a local law” is a law applicable to a

particular area or territory. Since the Act, 2017 deals with

protection of heritage buildings, heritage sites, natural

heritage sites, historical sites, and museums for the entire

State of Telangana, it is a “special law” dealing with the

special topic. However, the Zoning Regulations, 2010

containing the Regulation 13 of the Zoning Regulations,

1981, is confined to the metropolitan development area of

Hyderabad. Thus, it is, indeed, a “local law” being applied

only to the territory defined as the “development area”.

Therefore, both the “special law” and the “local law” can

peacefully co-exist.

107. Moreover, even if it were accepted, for the sake

of argument that there is some inconsistency between the
102

Regulation 13 of the Zonal Regulations, 1981 and the Act,

2017, the former being a “local law” would take precedence

over the “special law”. Thus, even in such a scenario, both

the provisions of law can continue to co-exist peacefully.

Thus, the twin arguments raised by the learned AAG are

unacceptable.

108. Countering the arguments raised by the learned

counsel for the petitioner that before any land use can be

changed by the government, it must seek the permission of

the development authority as required under section 19 of

the HMDA act, the learned AAG has pleaded that section

34 of the Urban Areas Act and section 49 of the HMDA Act

permits the government to issue instructions to the

development authority. Therefore, the government is not

required to seek any permission from the development

authority. The relevant portion of Section 34 of the Urban

Areas Act reads as under:

34. Control by Government:- (1) The
Authority shall carry out such directions as may
be issued to it, from time to time, by the
Government for the efficient administration of this
Act.

(2) xxx
(3) xxx
(4) xxx

(a) xxx

(b) xxx

(c) xxx
103

109. The relevant portion of Section 49 of the HMDA

Act reads as under:

49. Control by Government:- (1) The
Metropolitan Development Authority shall carry
out such directions and guidelines as may be
issued to it, from time to time, by the Government
for the efficient discharge of its responsibilities
and functions under this Act.

(2) xxx
(3) xxx

110. A bare perusal of these provisions clearly reveals

that they are similar in their content. Therefore, they can

be read mutatis mutandis. Secondly, the said provision

merely imposes a duty upon the development authority to

carry out such directions and guidelines as may be issued

by the government “for the efficient discharge of its

responsibilities and functions under this Act”. However, in

the garb of issuing directions and guidelines, the

government cannot scuttle the mandatory provisions off

Sections 15 and section 19 of the HMDA Act. Therefore,

prior to changing the land use, permission is required from

the development authority. Hence, the contention raised by

the AAG is clearly unacceptable.

111. The learned AAG has also emphasized that the

scope of judicial review while examining a government

policy decision is extremely limited one. Therefore, as the

government has taken a policy decision, this Court should

restrain itself from entering into the legality or illegality of
104

the policy decision. In order to buttress this plea, the

learned counsel has relied upon the cases of Kannadapara

Sanghatanegala Okkuta Kannadigara (supra), and Jal

Mahal Resorts Private Limited (supra).

112. While accepting the settled principle that the

courts ordinarily should not interfere with policy decision,

in the case of Brij Mohan Lal v Union of India29, the

Hon’ble Supreme Court also opined that “this general rule

is not free from exceptions.” The Apex Court prescribed

certain grounds where the court would be legally justified

in interfering with a policy decision. The Apex Court

observed as under:

Certain tests, whether this Court should or not
interfere in the policy decisions of the State, as
stated in other judgments, can be summed up as:
(I) If the policy fails to satisfy the test of
reasonableness, it would be unconstitutional.
(II) The change in policy must be made fairly and
should not give the impression that it was so done
arbitrarily on any ulterior intention.
(III) The policy can be faulted on grounds of mala
fides, unreasonableness, arbitrariness or
unfairness, etc.
(IV) If the policy is found to be against any statute
or the Constitution or runs counter to the philosophy
behind these provisions.

(V) It is dehors the provisions of the Act or
legislations.

(VI) If the delegate has acted beyond its power of
delegation.

Cases of this nature can be classified into two
main classes: one class being the matters relating to

29
(2012) 6 SCC 502
105

general policy decisions of the State and the second
relating to fiscal policies of the State. In the former
class of cases, the courts have expanded the scope
of judicial review when the actions are arbitrary,
mala fide or contrary to the law of the land; while in
the latter class of cases, the scope of such judicial
review is far narrower. Nevertheless,
unreasonableness, arbitrariness, unfair actions or
policies contrary to the letter, intent and philosophy
of law and policies expanding beyond the
permissible limits of delegated power will be
instances where the courts will step in to interfere
with government policy.

(Emphasis added).

113. Therefore, although judicial review of the policy-

decision is a limited one, although the Court cannot

substitute its own decision for the decision of the

government, but nonetheless, the Court can interfere with

the decision provided that provisions of law and/or relevant

factors have been ignored in the process of taking the

decision. If provisions of law have been ignored in the

process of taking decision, the decision is said to be an

arbitrary one. Therefore, in this limited scope, the Court

would be justified in interfering with the decision while

exercising the power of judicial review. Hence, this Court is

merely examining whether while taking the decision

relevant provisions of law and/or relevant factors have

been over looked by the State or not?

114. A bare perusal of the facts and laws mentioned

hereinabove would clearly reveal that while taking the
106

decision, the government has ignored essential provisions

of law and relevant factors:

(i) The government has ignored the legal position that

the Regulation 13 of the Zonal Regulations, 1981 was

framed under Section 59 of the Urban Areas Act by the

Development Authority. The government has further

ignored the legal position that it did not have the power to

repeal the Regulation 13 of Zonal Regulations, 1981. For,

the power to repeal is vested only with the Development

Authority. Hence, the very repeal is per se illegal.

(ii) The government has overlooked the fact that under

the Master Plan, 2010 certain areas of Hyderabad have

been declared as Special Reservation Zones. These Special

Reservation Zones incorporate “heritage buildings and

heritage sites”.

(iii) The government has ignored the scope and ambit

of the HMDA Act. The government has ignored that under

Section 18 of the HMDA Act, the power to develop the land

is bestowed only on the Development Authority.

(iv) The government has ignored the fact that in case

of any modification in the Master Plan legally requires a

specific procedure to be followed as prescribed by Section

15 (3) of the HMDA Act. It has also ignored the fact that the

said procedure is mandatory in nature. Therefore, in case
107

any modification or alteration needs to be made in the

Special Reservation Zone of the Master Plan, it needs to

follow the procedure prescribed by Section 15(3) of the

HMDA Act.

(v) The government has ignored the existence of

Section 19 of the HMDA Act. The said provision deals with

the procedure to be followed in case of change of use of

land. Since, the government proposes to change the use of

land of Special Reservation Zone, it is required to adhere to

the procedure prescribed by Section 19 of the HMDA Act.

However, the government has ignored the said procedure.

(vi) Under the misimpression that since Regulation 13

of the Zoning Regulations, 1981 has been repealed in 2015,

such “heritage buildings and heritage sites” have lost their

status as “protected buildings”, the government has

ignored the “incorporation” of Regulation 13 of the Zoning

Regulations, 1981 in Regulation 9(A)(ii) of the Zoning

Regulations, 2010.

(vii) The government has ignored the legal position

that once Regulation 13 of the Zoning Regulations, 1981 is

“incorporated” in the Zoning Regulations, 2010, the said

Regulation would continue to be alive even if the parental

Regulation, namely Regulation 13 of the Zoning

Regulations, 1981 were repealed.

108

(viii) The government has ignored the fact that since

Regulation 13 of the Zoning Regulations, 1981 continues to

exist, the protection given to the “protected heritage

building” continues to be alive. In fact, since Irrum Manzil

is shown in the Master Plan 2010 as falling in the Special

Reservation Zone, the Irrum Manzil continues to enjoy the

protection given to it under Regulation 13 of the Zoning

Regulations, 1981 as incorporated under the Zoning

Regulations, 2010.

(ix) The government has ignored the fact that if any

modification, development, re-development or demolition of

a heritage building is required, then the procedure

prescribed under the Regulation 13(2) of the Zoning

Regulations, 1981 necessarily has to be followed. Yet, the

government have not taken any permission from the HMDA

prior to taking the decision on 18.06.2019.

(x) The government has tried to achieve a goal

indirectly, which it could not have achieved directly.

Therefore, the government, while taking the decision, have

violated the provisions of Section 15 of the HMDA Act, and

acted contrary to Regulation 9 (A) (ii) of Zonal Regulations,

2010.

(xi) The government have also ignored that by order

dated 18.04.2016, passed in Writ Petition (PIL) No. 360 of
109

2015, this Court had directed the government to seek its

permission before modifying or demolishing or altering any

structure declared as heritage, under Regulation 13 of the

Zoning Regulations, 1981. Therefore, the decision of the

government is in violation of the direction issued by the

learned Division Bench of this Court in W.P. (PIL) No. 360

of 2015.

(xii) The government has equally ignored the relevant

factor that identity of an individual is moulded by his/here

culture, history and heritage. Therefore, preservation of

heritage has been incorporated to be part of “life” enshrined

in SectionArticle 21 of the Constitution of India. (Refer to

Ramsharan Autyanuprasi (supra)).

(xiii) The government has also ignored the fact that

the identity and character of a city is defined by its heritage

and architecture. Therefore, it is imperative for the

government to preserve, conserve and restore the heritage

buildings of the cities. Considering the importance of

heritage, the World Heritage Convention, 1972 imposes a

duty to protect and conserve the cultural heritage of the

country. Moreover, it imposes a duty upon the State to

integrate the protection of heritage into comprehensive

planning programmes. Therefore, it is an imperative duty

of the State to preserve the heritage buildings which
110

contribute to the sense of culture and sense of identity of

the city. The State cannot afford the luxury of forgetting

that the destruction of heritage building will rob its people

the essence of their identity, and will deprive the city its

sense of uniqueness. While it is important to plan for the

future, it is equally important to protect, to preserve and to

promote the past.

115. Hence, in the process of taking the decision, the

State has ignored various essential provisions of law,

essential procedures established by law, the directions

issued by this Court, and has overlooked important factors.

The said decision is, therefore, clearly an arbitrary one.

Thus, the Cabinet decision dated 18.06.2019 is legally

unsustainable.

116. For the reasons stated above, both these writ

petitions are hereby allowed. The decision of the Council of

Ministers, dated 18.06.2019, is set aside. No order as to

costs.

Miscellaneous petitions pending, if any, shall stand

closed.

__
RAGHVENDRA SINGH CHAUHAN, CJ

Dr. SHAMEEM AKTHER, J
16.09.2019
Note: LR copy be marked.

(By order) Tsr/Pln
111

THE HON’BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN
AND
THE HON’BLE DR. JUSTICE SHAMEEM AKTHER

WRIT PETITION (PIL) Nos. 79 OF 2019 AND 86 OF 2019

(Per the Hon’ble the Chief Justice Raghvendra Singh Chauhan)

Dated: 16-09-2019

Tsr/Pln

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