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2001 DIGILAW 1383 (AP)

V. K. Bawa v. Government Of A. P.

2001-11-02

S.B.SINHA, V.V.S.RAO

body2001
S. B. SINHA, J. ( 1 ) THE petitioners who are said to be public-spirited citizens, have filed this writ petition in the nature of public interest litigation claiming inter alia the following reliefs:. . . . to issue a writ of mandamus or any other appropriate writ or order or direction declaring the action of the respondents in not taking steps to preserve the structures in he old city of Hyderabad, especially within the Heritage Precincts of city as declared by Respondent No. 2 on 30. 4. 2000 is violative of the declared policy of the Government to get the status of Heritage City as per UNESCO norms and G. O. 542 dated 14. 12. 1995 and the notification of R2 No. 3023/pr/huda/2000 dated 30. 4. 2000 and consequently direct the respondents (i) to take steps to preserve all the buildings in Heritage Precincts area (ii) to conduct comprehensive studies on the foundation of charminar and the Tunnels leading to Golconda Fort for taking steps to get the World Heritage Status from UNESCO and pass such or further orders as deemed fit. ( 2 ) PRESERVATION of Heritage Buildings and Heritage Precincts had been the subject-matter of a policy decision by the State. The Government of Andhra Pradesh by its order in G. O. Ms. No. 542, Municipal Administration and Urban Development Department, dated 14th December, 1995 accorded its approval to the Hyderabad Urban Development Authority (HUDA) for addition of a new regulation to the existing Hyderabad Urban Development Authority Zoning Regulations, 1981 ( 1981 Regulations for brevity) for the conservation of Historical Buildings and areas in Hyderabad City. Pursuant to and in furtherance thereof, the HUDA, in exercise of its power under Section 59 (1) of the Andhra Pradesh Urban Areas (Development) Act, 1975 ( 1975 Act for brevity) has issued a notification including Regulation 13 in the 1981 Regulations. Sub-Regulations (1) and (2) of Regulation 13 reads thus: regulation No. 13: 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 : i. Applicability: this regulation will apply to those buildings, areas, artefacts, structures and precincts of historical and/or aesthetical and/or architectural and/or cultural value (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 newspapers before finalising 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/re-development/ repairs, etc. : (i) No Development or re-development 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 (hereafter 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 overrule the recommendation of Heritage Conservation Committee; 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) In relation to religious buildings in the said list, the changes, repairs, additions, alterations and renovations required on religious grounds mentioned in sacred texts, or as a part of holy practices laid down in religious codes shall be treated as permissible, subject to their being accordance with the original structure and architecture, designs, aesthetics and other special features thereof. Provided that before arriving at his decision, the Vice-Chairman, Hyderabad Urban Development Authority shall take into consideration the recommendations of the Heritage Conservation Committee. ( 3 ) THE Government by its order in G. O. Ms. No. 416, Municipal Administration and Urban Development (II) Department, dated 12. 8. 1996, for discharge of the functions by the Heritage Conservation Committee, issued the guidelines for appointing the committee, which includes qualification/composition and the terms of reference of the committee. The Government has also issued another Government Order vide G. O. Ms. No. 417, M. A. , Municipal Administration and Urban Development (II) Department, dated 12. 8. 1996 constituting the Heritage Conservation Committee. The Vice-Chairman, HUDA, has issued a notification bearing No. 3023/pr/huda/2000 dated 30. 4. 2000 stating: regulations 13 (1) of Hyderabad Urban Development Authority Zoning Regulations provides for the notification of Precincts of historical and/or architectural and/or cultural value. No. 417, M. A. , Municipal Administration and Urban Development (II) Department, dated 12. 8. 1996 constituting the Heritage Conservation Committee. The Vice-Chairman, HUDA, has issued a notification bearing No. 3023/pr/huda/2000 dated 30. 4. 2000 stating: regulations 13 (1) of Hyderabad Urban Development Authority Zoning Regulations provides for the notification of Precincts of historical and/or architectural and/or cultural value. According to Regulation 13 (7), buildings included in Heritage precincts shall maintain the skyline in the precinct as may be existing in the surrounding area, so as not to diminish or destroy the value and beauty of the said precincts. The notification of Heritage Precincts will imply that development proposals, street furniture, road widening proposals and outdoor publicity within the Heritage Precincts shall need to be approved by the Vice-Chairman, HUDA and the Heritage Conservation Committee, before permission is granted by the Municipal Corporation of Hyderabad or other competent authorities. Under Regulation 13 (1) of Hyderabad Urban Development Authority Zoning Regulations, 1981, as amended, the Hyderabad Urban Development Authority hereby publishes the first notification of the following six additional Heritage Precincts covering certain historical localities and areas of environmental importance: ( 4 ) IN the aforementioned notification, Charminar area was declared as Heritage Precinct No. 10, the justification of which includes historic core consisting of parts of the former walled city and including many historic localities, street facades, structures and buildings. The area has been notified specifying its boundaries. ( 5 ) THE grievance of the petitioners is that despite the fact that detailed procedures had been laid down, buildings, which come within the purview of the boundaries specified in Precincts No. 10, have been demolished without consulting the statutory committee. ( 6 ) MR. K. S. Murthy, the learned Counsel appearing on behalf of the petitioners would submit that the statutory committee should not only be consulted but before doing the same the persons interested should also be given an opportunity of hearing. ( 6 ) MR. K. S. Murthy, the learned Counsel appearing on behalf of the petitioners would submit that the statutory committee should not only be consulted but before doing the same the persons interested should also be given an opportunity of hearing. ( 7 ) WITH regard to the contention made by the State that the road widening process is going on, the petitioners in their reply-affidavit state: i submit that it is inappropriate to entrust the Tourism Department with the project of restoring the grandeur of Charminar and improving the surrounding areas as it involves traffic planning around Charminar and also road widening work in accordance with the ZDP and the Heritage rules and the permission needed from the Heritage Committee upon which final decision is taken by HUDA. It is mentioned that care is being taken to protect the notified buildings. The respondent is silent about protection of Precincts. ( 8 ) THE learned Advocate-General appearing on behalf of the State and Mr. Satyam Reddy, learned Counsel appearing on behalf of HUDA, submitted that road-widening project was finalized in the year 1998 and such a scheme was taken up in terms of the Zonal Development Plan, which has the statutory force. The learned Advocate-General would further submit that during the road widening process, only one compound wall had been demolished, taking into consideration the safety requirement. Our attention in this regard has been drawn to the minutes of the meeting held on 5. 10. 2001 by the Heritage conservation Committee, which reads thus: item No. 3. Subject: Road Development Plan for Charminar and Surrounding Areas covered under notified Heritage Precinct No. 10: xxx after detailed discussions the Heritage Conservation Committee noted that the Road Development Plans submitted by the M. C. H. evolved after prolonged deliberations and after several expert studies mentioned above including a study on the traffic flow and volumes by CRAFTS consultants who are transportation experts. The committee also noted that the Road Development Plans did not propose to affect any notified Heritage Buildings in the Heritage Precinct No. 10, except part of a veranda facing one of the gates of Chowmahalla on which in their 28th meeting the Heritage Conservation Committee already issued instructions to the M. C. H. to stop demolition and restore the structure. In the meeting the Commissioner, M. C. H. once again promised to carry out the restoration work. In the meeting the Commissioner, M. C. H. once again promised to carry out the restoration work. Members of the Committee representing the State and Central Departments of Archaeology clarified that no protected monuments will be affected by the proposed Road Development Plans. The committee noted that in the Heritage Precinct No. 10, most buildings proposed to be affected in the road widening were of recent origin and devoid of any. historic character. There were only a few buildings on the Mahboob Chowk to Shad Cafe stretch which had old arched facades typical of the area stated to be built during the Asfa Jahi period. But none of those structures had individually any outstanding historical or architectural value except their importance as part of the streetscape. The committee felt that in order to conserve the Charminar and the more important areas around it, this was a relatively small price to pay and that there did not seem to be any practical alternative but demolishing these structures. The committee stressed that the facade on all sides of the Mahboob Chowk must be protected at all costs since this was a typical historic square. The Bird Market must be conserved and maintained in a hygienic manner. The facade of the row of shops along the road from Lad Bazar to Shad Cafe so far as they constituted the northern facade of the Chowk should be rebuilt in the same style to preserve the integrity of the place, while inside they may be modern structures. The members stressed on preserving the ambience of the area through such architectural control while making room for free flow of traffic and a general improvement of quality of life for the old city areas. Such an approach will also make pedestrianisation of the Charminar area more acceptable to inhabitants of the area who had put up resistance in recent times. It was agreed (hat interested members of the Heritage Conservation Committee may like to visit the area and immediately suggest architectural guidelines that may then be communicated to M. C. H. to be followed in addition to the plans of Vastu Shilpa Consultants, in respect of the newly built facades and structures. It was agreed (hat interested members of the Heritage Conservation Committee may like to visit the area and immediately suggest architectural guidelines that may then be communicated to M. C. H. to be followed in addition to the plans of Vastu Shilpa Consultants, in respect of the newly built facades and structures. xxx the Heritage Conservation Committee suggested that permission may be granted to the Municipal Corporation of Hyderabad for the Road Development Plans mentioned above subject to the conditions of imposing architectural control on the new facades as detailed in the above note. ( 9 ) THE aforementioned resolution of the Heritage Conservation Committee has been approved by the Vice-Chairman, HUDA and the said concurrence was conveyed to the Commissioner and Special Officer, Municipal Corporation of Hyderabad in his letter dated 8. 10. 2001. ( 10 ) THERE cannot be any doubt whatsoever that having regard to the policy decision taken by the State and keeping in view Regulation No. 13 of the 1981 Regulations, the requirements thereunder must be complied with before taking up the Zonal Development Plans in Heritage Precinct No. 10. ( 11 ) UNDOUBTEDLY a Heritage Precinct has to be preserved. However, in relation to applicability of the regulations, public objections and steps are necessary. No such public objections herein are necessary in relation to restriction and development/re-development/repairs of Heritage Precincts. ( 12 ) THE only requirement therefore in terms of Regulation 13 (2) is that Vice-Chairman, HUDA is to act on the advice/ in consultation with- Heritage Committee except in exceptional cases wherefor reasons are required to be recorded in writing. The over-ail power to accord such sanction-is in the Vice-Chairman. He for the aforementioned purpose is required to apply his own mind. The Vice-Chairman, HUDA is even forbidden from delegating his own power. ( 13 ) IT is true that at the time when the writ petition was filed, the respondents did not comply with the requirements of Regulation 13. However, as noticed hereinbefore, the road development plan was in contemplation in and around the Charm inar area since 1998. ( 14 ) REQUIREMENT to take recourse to Regulation 13 (2) arose after 30. 4. 2000 when Charminar area was declared as Heritage Precinct No. 10. However, as noticed hereinbefore, the road development plan was in contemplation in and around the Charm inar area since 1998. ( 14 ) REQUIREMENT to take recourse to Regulation 13 (2) arose after 30. 4. 2000 when Charminar area was declared as Heritage Precinct No. 10. If the respondents had been proceeding on a misconception that they need not take any further concurrence from the Vice-Chairman, HUDA, having regard to the fact that Zonal Development Plan was approved as far back as in the year 1998, the same, in our opinion, although may not be technically correct, but keeping in view the fact that now even the Vice-Chairman, HUDA has accorded permission, no further direction in this regard is necessary. ( 15 ) THE State, there cannot be any doubt whatsoever, is bound to preserve the Heritage Buildings and Heritage Precincts and it, before making any modifications/ alterations therein, must carry out its activities strictly in terms of the mandatory provisions of Regulation 13 of the 1981 Regulations. ( 16 ) SO far as the submission of Mr. K. S. Murthy to the effect that his clients be given an opportunity of hearing is concerned, we are of the opinion that although in law no such requirement is necessary, having regard to the fact that the first petitioner himself was a Chairman of the Youth Advancement and Tourism Development Committee at one point of time, if he has any suggestions to make, he may do so in writing, which, we are sure, shall receive due consideration at the hands of the authorities concerned. ( 17 ) THE respondents, therefore, having regard to the fact that statutory provisions have now been complied with, may carry on the project in terms of the directions of Vice-Chairman, HUDA. ( 18 ) THIS writ petition is disposed of with the aforementioned observations and directions. No order as to costs.