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Omim Maneckshaw Debara vs The Union Of India And 8 Others 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. 64, 65, 73, 75 AND 80 OF 2019

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

These five writ petitions have been filed for

challenging the decision of the Council of Ministers dated

18.06.2019 whereby the Cabinet has decided to

construct a new legislative complex at the site of the

Irrum Manzil, a 150 year old palace, situated in the heart

of Hyderabad. Although different reliefs have been

prayed for from this Court, but the common denominator

remains the same, namely challenging the impugned

order mentioned above. Therefore, all these writ petitions

are being decided by this common order.

WRIT PETITION (PIL) No. 75 OF 2019

In this writ petition, five reliefs have been sought

for, which are as under:

(1) to declare that once it is declared as a listed Heritage
monument under the Hyderabad Urban Development
Authority Zoning Regulations, 1981 (Now called as HMDA),
it remains a listed Heritage Monument and Protected
Ancient Monument;
(2) to declare the decision of the respondents to demolish

the Irrum Manzil Building, and the connected Structures in
the sprawling area for the construction of New
Assembly/Secretariat Building for the State of Telangana
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without any relevant material and report of competent
committees under the relevant Acts before it;
(3) to declare that the decision of the cabinet and the
respondents to demolish Irrum manzil as illegal without
jurisdiction a colourable exercise of power, discriminatory,
capricious, whimsical;

(4) to declare action of the respondents in not including
the Irrum Manzil in the Schedule 1 and 2 of the Telangana
Heritage (Protection, Preservation, Conservation and
SectionMaintenance) Act, 2017 while including many less
important / recent structures in the list of 346 structures
ignoring the Notification declaring Irrum Manzil as a listed
Heritage monument under the Hyderabad Urban
Development Authority Zoning Regulations, 1981 and
disregarding the Ancient Monument and Archaeological
Sites and Remains Act, 1958 and the Ancient Monuments
preservation Act, 1904 and the Convention Concerning the
Protection of the World Cultural and Natural heritage as
whimsical, discriminatory, capricious, and a colorable
exercise of power in violation of the fundamental rights of
the petitioner, Citizens of the Country, and also the Dead
Noble (Fakhr ul Mulk Bahadur) as Fame is a food that
dead men eat protected by SectionArticle 21 of the Constitution of
India; and
(5) to direct the respondents to include the Irrum Manzil
in the schedule 1 and 2 of the Telangana Heritage
(Protection, Preservation, Conservation, and SectionMaintenance)
Act, 2017, and as a protected monument under the SectionCentral
Acts, and preserve, and protect the same.

For the reasons given in W.P. (PIL) Nos. 79 of 2019

and 86 of 2019, it is obvious that once Irrum Manzil is
3

declared as protected building under Regulation 13 of the

Bhagyanagar (Hyderabad) Urban Development Authority

Zoning Regulations, 1981 (“the Zoning Regulations,

1981”, for short), which has been incorporated in

Regulation 9(A)(ii) of the Land Use Zoning Regulations,

2010 (“the Zoning Regulations, 2010”, for short), Irrum

Manzil will continue to enjoy the status of being

“protected heritage building”. Therefore, prayer No.1,

made in the present writ petition, is hereby allowed.

In consonance with the decision in the aforesaid

writ petitions, it is held that the decision of the Cabinet,

dated 18.06.2019 is legally unsustainable. Therefore,

prayer Nos.2 and 3 are allowed in the same terms.

However, under the Telangana Heritage (Protection,

Preservation, Conservation and SectionMaintenance) Act, 2017

(“the Act, 2017”, for short), it is for the Committee to

recommend to the government that Irrum Manzil and

other “heritage buildings” existing in Hyderabad should

be included in the Schedule attached with the Act, 2017

or not. Thus, this Court will not be justified in directing

the government to include Irrum Manzil in Schedule I

II of Act, 2017. Therefore, relief Nos. 4 and 5 claimed by

the petitioner in the present writ petition cannot be

granted.

4

Hence, Writ Petition No. 75 of 2019 is partly

allowed. No order as to costs.

WRIT PETITION (PIL) No. 80 OF 2019

In this writ petition, ten reliefs have been sought,

which are as under:

1) to declare G.O. Ms. No. 542, dated 14.12.1995,
whereby Regulation 13 of the Zoning Regulations, 1981,
was approved by the government and was incorporated in
the Zoning Regulations, 1981, as legally valid;

2) to declare G.O. Ms. No. 183, dated 07.12.2015,
whereby Regulation 13 of the Zoning Regulations, 1981,
was repealed from its very inception by the government,
as illegal;

3) to declare G.O. Ms. No. 416, dated 12.08.1996,
whereby the Committee was constituted by the
government, as legally valid;

4) to declare G.O. Ms. No. 417, dated 12.08.1996,
whereby again the Committee was reconstituted, as
legally valid;

5) to declare G.O. Ms. No. 102, dated 23.03.1998,
whereby 137 heritage buildings were declared as
protected heritage buildings and heritage precincts, as
legally valid;

6) to declare G.O. Ms. No. 68, dated 03.02.2009,
whereby fifteen more sites have been declared as
“heritage precincts” legally valid;

7) to declare that the protected heritage buildings
declared by G.O. Ms. No. 68, MA, dated 03.02.2009 can
5

peacefully co-exist with those monuments, which are
declared as protected heritage monuments under Act,
2017;

8) to declare the omission of not including Irrum Manzil
within Act, 2017 as illegal. And consequently, direct the
government to include the said building in Schedule I and
II of the Act, 2017;

9) to direct the respondents to protect the Irrum Manzil
as heritage building; and

10) to declare the Cabinet decision dated 18.06.2019 as
arbitrary and illegal. Consequently, set aside the said
decision.

The learned counsel for the petitioner has pleaded

that G.O.Ms. No. 542, dated 14.12.1995, whereby

Regulation 13 of the Zoning Regulations, 1981 was

brought into the statute-book, was legally valid as it was

framed by HUDA by invoking its power under Section 59

of the Andhra Pradesh Urban Areas (Development) Act,

1975 (‘the Urban Areas Act’, for short). Moreover, the

said Regulation had been approved by the government by

the said G.O. Hence, the validity of Regulation 13 of the

Zoning Regulations, 1981 cannot be doubted. Moreover,

since the power to frame a regulation is bestowed only

upon the Development Authority, it could not be repealed

by the government. Hence, G.O.Ms. No. 183, dated

07.12.2015 whereby the Regulation 13 of the Zoning

Regulations, 1981 was repealed is illegal. Moreover,
6

unless and until Section 59 of the Urban Areas Act

permits the government to repeal the Regulation from

retrospective effect, a Regulation cannot be repealed from

retrospective effect. Since Section 59 of the Urban Areas

Act does not bestow such a power, the government could

not have repealed Regulation 13 of the Zoning

Regulations “from its very inception.” Hence, the repeal

by the government is per se illegal. In order to further

buttress his arguments, the learned counsel has adopted

the arguments raised by Mr. D. Prakash Reddy, the

learned Senior Counsel, who is the counsel appearing for

the petitioner in Writ Petition (PIL) No. 86 of 2019.

Hence, these arguments are not being reproduced here.

On the other hand, the learned Additional Advocate

General has reiterated his arguments justifying the

repeal of Regulation 13 of the Zoning Regulations, 1981

by G.O.Ms. No. 183, dated 07.12.2015. Therefore, these

arguments are not being reproduced in this part of the

judgment.

Suffice it to say, as discussed in Writ Petition (PIL)

Nos. 79 and 86 of 2019, HUDA was legally justified in

framing Regulation 13 of the Zoning Regulations, 1981

by invoking its power under Section 59 of the Urban

Areas Act. Moreover, since the said regulation was
7

approved by the government, Regulation 13 of the Zoning

Regulations, 1981 is a statutory regulation having the

force of law.

The learned counsel for both the parties have

vociferously argued on the issue whether the repeal of

Regulation 13 of the Zoning Regulations, 1981 by

G.O.Ms. No. 183, dated 07.12.2015 was legally valid or

not? This issue has already been discussed by this

Court while dealing with Writ Petition (PIL) Nos. 79 and

86 of 2019. Although it was mentioned that in Writ

Petition (PIL) Nos. 79 and 86 of 2019 the repeal of

Regulation 13 of the Zoning Regulations, 1981 was not

questioned, as no relief was asked for, but in the present

writ petition, one of the reliefs being prayed for is to

declare the repeal of Regulation 13 of the Zoning

Regulations, 1981 as illegal. Instead of reproducing all

the contentions raised by both the learned counsel, and

considering the fact that the arguments are the same as

raised by Mr. D. Prakash Reddy, the learned Senior

Counsel in Writ Petition (PIL) No. 86 of 2019, the

contentions and the reasoning are adopted in this writ

petition. Therefore, for the reasons stated hereinabove,

this Court is of the view that the government does not

have the power to repeal Regulation 13 of the Zoning
8

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

07.12.2015. Hence, the repeal of Regulation 13 of the

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

07.12.2015 is patently illegal. Therefore, prayer Nos.1

and 2, made in the present writ petition, are hereby

allowed.

As far as relief Nos. 3, 4, 5 and 6 mentioned

hereinabove are concerned, suffice it to say that these

Government Orders were issued while Regulation 13 of

the Zoning Regulations, 1981 was alive and operational.

Moreover, since Regulation 13 of the Zoning Regulations,

1981 has been incorporated in Regulation 9(A)(ii) of the

Zoning Regulations, 2010, the protection given to the

“heritage building” will continue to survive even today.

Furthermore, since the repeal of Regulation 13 of the

Zoning Regulations, 1981 has been declared as illegal,

the protection given to the “heritage building” would

continue. Therefore, the prayer Nos. 3, 4, 5 and 6 are

allowed.

As far as relief No. 7 is concerned, since the

protection given to Irrum Manzil continues to exist, there

is no need for this Court to direct the government to

include Irrum Manzil as a “protected heritage monument”
9

under Act, 2017. Therefore, no order needs to be passed

qua the relief No.7.

As far as relief No. 8 is concerned, it is sufficient to

state that this Court has already opined in W.P. (PIL)

Nos.79 and 86 of 2019 that both Regulation 13 of the

Zoning Regulations, 1981, and Act, 2017 can co-exist

peacefully as there is no contradiction between the two.

While the former is a “local law” applicable to the limits of

Hyderabad Metropolitan Development Area, the latter is a

“special law” applicable to the entire State. Therefore,

even the protected “heritage building” under Regulation

13 of the Zoning Regulations, 1981 can also co-exist

peacefully with those “monuments” which are declared to

be “protected heritage monuments” under Act, 2017.

Therefore, relief No. 8 is allowed.

In the same light, there is no need for this Court to

direct the respondents “to protect the Irrum Manzil” as

the palace already enjoys the status of being a “protected

heritage building” under Regulation 9(A)(ii) of the Zoning

Regulations, 2010. Therefore, no directions need to be

given to the respondents by this Court with regard to

relief No.9.

Lastly, as regards relief No. 10, this Court has

already declared that the Cabinet decision dated
10

18.06.2019 is arbitrary and illegal one in W.P. (PIL) Nos.

79 and 86 of 2019. Thus, the relief sought for by the

petitioner is hereby granted. Therefore, the Writ Petition

(PIL) No. 80 of 2019 is partly allowed. No order as to

costs.

WRIT PETITION (PIL) Nos. 64, 65 73 OF 2019

Although these writ petitions have been argued on

different grounds by the respective learned counsel for

the petitioners, the relief being prayed for is the same

relief as in Writ Petition (PIL) Nos. 79 and 86 of 2019.

Therefore, these writ petitions are allowed in light of the

decision given in Writ Petition (PIL) Nos. 79 and 86 of

2019.

__
RAGHVENDRA SINGH CHAUHAN, CJ

Dr. SHAMEEM AKTHER, J

16.09.2019
Tsr/Pln
11

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

WRIT PETITION (PIL) Nos. 64, 65, 73, 75 AND 80 OF 2019

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

DATE:16.09.2019

Tsr

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