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2019 DIGILAW 343 (TS)

J. Shankar v. State of Telangana

2019-09-16

RAGHVENDRA SINGH CHAUHAN, SHAMEEM AKTHER

body2019
ORDER : Raghvendra Singh Chauhan, J. 1. 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 2. 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 2. 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 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 Maintenance) 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 Article 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 Maintenance) Act, 2017, and as a protected monument under the Central Acts, and preserve, and protect the same. 3. For the reasons given in W.P. (PIL) Nos. 3. For the reasons given in W.P. (PIL) Nos. 79 of 2019 and 86 of 2019, it is obvious that once Irrum Manzil is 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. 4. 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. 5. However, under the Telangana Heritage (Protection, Preservation, Conservation and Maintenance) 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. 6. Hence, Writ Petition No. 75 of 2019 is partly allowed. No order as to costs. WRIT PETITION (PIL) No. 80 OF 2019 7. 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. 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 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. 8. 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, 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. 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. 9. 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. 10. 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 approved by the government, Regulation 13 of the Zoning Regulations, 1981 is a statutory regulation having the force of law. 11. 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 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. 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. 12. 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. 13. 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” under Act, 2017. Therefore, no order needs to be passed qua the relief No.7. 14. 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. 15. 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. 16. 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. 16. Lastly, as regards relief No. 10, this Court has already declared that the Cabinet decision dated 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 17. 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.