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Petition under WP No 4975 and 6505 of 2004.
Re:
Adil Alan Mansion , listed as Heritage Building under category
III, serial no 119, code no 3.51.
Forum For A Better Hyderabad, represented
by Manatosh Mandal and Sanghamitra Malik
challenged the action of the State Government in issuing
G.O.Ms.No.36/13.2.2004 which deleted Adil Alan Mansion from
the list of the Heritage buildings.
The parties impleaded were the Government of A.P.
represented by its Principal Secretary, Municipal
Administration and Urban Development of A.P., who issued the
above G.O., the HUDA represented by its Vice Chairman, the
Heritage Conservation Committee represented by its Chairman,
and Mr. D.E.Taraporewala, the owner of the heritage building.
2.
The petitioners submitted that the concept of conserving the
Heritage buildings and precincts was incorporated in
Constitution of India and the state government declared that
heritage conservation was the ‘policy’ of the state . The
State Government introduced regulation No.13 to the HUDA
zoning regulations 1981 for conservation of Heritage buildings
and precincts, under G.O.Ms.No.542 dated 14.12.95. By
virtue of the regulation the Heritage Conservation Committee
was created. Pursuant to the introduction of the
regulation, G.O.Ms.No.102 M.A.dated: 23.03.1998 was issued
which notified the heritage buildings and heritage precincts
that were to be protected. Adil Alan Mansion was included in
the notification and any repair, demolition etc., to it were
to be done only as per the procedure prescribed under
G.O.Ms.No.542.
3.. When the MCH, and Government went ahead with the
demolition of buildings in Charminar precinct area, members
of the petitioner organisation approached the Hon’ble High
Court in WP No 20387 of 2001 and the Hon’ble court made it
clear that the procedure prescribed under G.O.Ms.No. 542 had
to be scrupulously followed. Similarly, when the authorities
failed to protect the monuments including Golconda fort,
Raymond’s tomb , and Mawala palace, the members of the
petitioner forum filed writ petition under WP no 7631/2002 and
the authorities were directed by the Hon’ble court to
conserve these heritage buildings.
4. In Sept’01, one Veranda of the Adil Alan Mansion
’collapsed’ and the owner had sought the permission to
rebuild. This was placed before the Heritage Conservation
Committee, on 10th Dec’01 and the issue was
considered . Subsequently this issue came up again before the
Heritage Conservation Committee in January ’02 and MCH was
directed to see that the owner submitted a plan for
restoration and not to grant any permission for demolition or
new construction. The members of the Heritage Conservation
Committee visited the site on 13.08.02 and the owners were
requested to consult the heritage conservation experts and
recommendations were made keeping in view the needs of the
owner to utilise the land without endangering the heritage
structure.
5. Thereafter, the owner had submitted a proposal to
modify certain structures and a plan for preserving the
structure in May 2003. The Heritage Conservation Committee
in May 03 wanted this proposal to be routed through the
Municipal Corporation of Hyderabad so that final permission
be given. The owner was taking steps to renovate and to
preserve this heritage building.
6. Suddenly in the month of Oct’03 a notification was
issued by HUDA calling for objections for the proposal to
delete the Adil Alan Mansion building. The notification said
that the government had in principle decided to delete the
building from the list. This was in violation of the GO542
which stipulated that the deletions may be approved by the
government on receipt of the proposals from HUDA VC, Heritage
Conservation Committee or by the government suo moto. In this
case neither the first two parties proposed the deletion but
the government seemed to have decided on demolition, earlier
to this process prescribed under GO 542. The concept of
consideration was well explained by the Supreme Court on
various occasions. This word consideration had special
significance when it dealt with the issues like environment
and protection of the heritage where irretrievable damage was
to take place. The GO was issued in a hurry without duly
considering the opinions of the Heritage Conservation
Committee. The opinions of the Heritage Conservation
Committee, which rejected the proposal for demolition, in
several consecutive meetings, were forwarded without demur by
HUDA. The action of the state government in issuing GO on
extraneous consideration was arbitrary and in violation of
article 14 of Constitution of India. The petitioners pleaded
that the state government should not decide to delete the
building and then call for objections . These objections were
not considered at all by state government even at this stage.
The decision making process as well as the decision were
faulty. The decision was in violation of the policy of the
state government and on this ground the impugned GO should be
set aside.
7. It was prayed that this Hon’ble Court may be pleased to
declare the action of the state government in deciding to
delete Adil Alam Mansion, Nampally Station Road, Hyderbad from
the list of Heritage building as unconstitutional violation
of Go 542 and of the policy declared by government and to
consequently set aside the G.O.Ms.No.36, dated: 13.02.2004 and
pass order or other orders as deemed fit in the interest of
justice. Pending further orders, the Hon’ble Court was
requested to direct the respondents, agents to maintain
status quo
8. The High Court directed the Respondents to file
Counter within four weeks and , meanwhile to retain status
quo.
9. The Owner of the building, in
his counter, inter alia, challenged the validity of Regulation
13 (4) of HUDA Zoning Regulations 1981 and contended that it
was ultra vires of the Urban development Authorities Act
1972. In reply thereto, the petitioners referred to the
High Court judgment of 14.2.2002 in W.P. no 12647/97,
8908/2000, CC 1058/2001 in which it had conclusively ruled in
the Malwala Palace case that Regulation 13 [4] is perfectly
legal.
10. The petitioners particularly emphasized the
point that it was an usual plea taken by owners of heritage
buildings when they seek to demolish it, that the building was
unsafe, quoting some collapses. Same plea was taken in respect
of G block by the R & B department of the state government.
The High Court then ruled that unless there was a report by
the Heritage Conservation Committee, the expert body appointed
by the state government for heritage conservation, about the
non-maintainability of a heritage building, such plea should
be discarded. In the case of “G Block”, it was accepted that
an advice from RB department of the Government was not
adequate, and the Honourable Court accordingly directed the
Government to refer the matter to the Heritage Conservation
Committee..
11. A false impression was sought
to be created that the Government acted after taking the views
of HUDA and the HCC. In fact, the Government acted contrary
to the advices of HCC and the HUDA. That too, without
assigning any reasons for over-riding the recommendations of
an expert body like the Heritage Conservation Committee. The
Government ignored the positive and helpful recommendations of
the Heritage Conservation Committee to conserve the structure,
to build additional structure in the premises of the owner to
meet the requirements of the owners and failed to take note of
the sudden change in the attitude of the owner’s insistence
only on demolition. The Government’s action was arbitrary. It
was extra-ordinary. Discretion is to be exercised with
supporting reasons to be recorded. There is no evidence of due
or careful consideration by the Government, as required in the
last sentence of Regulation 13 (3), which says::
“…duly considered by the
Vice-Chairman, Hyderabad Urban Development Authority and /or
by the Government.”.
The
Court heard the Counter of the respondents and the
reply thereto of the petitioners. The Court thought it
appropriate to know the exact nature of the building at
present, as to whether it can be preserved as a
heritage building, and can be renovated or there is any chance
of the building being revived and if revived what
could be the guarantee of structural safety. The Court sought
a list of names of structural engineers from
both the parties. From the lists submitted, the Court
appointed two Commissioners viz., V.V.Associates
(suggested by the respondent owner), and Sajjad Shahid
(suggested by the petitioners) to inspect the building
jointly and give a report to the Court within a
month from the date of the order, i.e.,
20.4.05. . The petitioners and the respondents each were
directed to deposit Rs.15000/- with the Court, which they
did. The matter stands here as of now.
Other PILs :
G’ Block
in the Secretariat premises
HUSSAIN SAGAR
HIMAYATSAGAR & OSMANSAGAR
Golconda
Fort, Raymond's Tomb, Malwala Palace & Chowmahalla Palace
Road
Widening in Charminar Precinct |
