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
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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.
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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
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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,
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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
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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
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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”
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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
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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.
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RAGHVENDRA SINGH CHAUHAN, CJ
Dr. SHAMEEM AKTHER, J
16.09.2019
Tsr/Pln
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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