HYDERABAD: Pointing out that the State government has neither taken any written permission from Hyderabad Metropolitan Development Authority (HMDA) nor followed the procedure prescribed under the HMDA Act before taking a unilateral decision to demolish Errum Manzil, a division bench of the Telangana High Court on Monday held it was arbitrary and legally unsustainable.
While setting aside the cabinet decision on the issue, the bench said that the government has ignored essential provisions of law and relevant factors which include:
(i) The government has ignored the legal position that it did not have the power to repeal Regulation 13 of Zonal Regulations, 1981.
(ii) it has overlooked the fact that under the Master Plan, 2010 certain areas of Hyderabad have been declared as special reservation zone which incorporates “heritage buildings and heritage sites.
(iii) the government has ignored that under Section 18 of the HMDA Act, the power to develop the land is bestowed only on the development authority.
(iv) The government has ignored the fact that in case of any modification in the Master Plan legally requires a specific procedure to be followed as prescribed by Section 15 (3) of the HMDA Act.
(v) The government has ignored the existence of Section 19 of the HMDA Act. The said provision deals with the procedure to be followed in case of change of use of land. Since, the government proposes to change the use of land of Special Reservation Zone, it is required to adhere to the procedure prescribed by Section 19 of the HMDA Act.
(vi) Under the misimpression that since Regulation 13 of the Zoning Regulations, 1981 has been repealed in 2015, such “heritage buildings and heritage sites” have lost their status as “protected buildings”, the government has ignored the “incorporation” of Regulation 13 of the Zoning Regulations, 1981 in Regulation 9(A)(ii) of the Zoning Regulations, 2010.
READ | Telangana High Court sets aside govt decision to demolish Errum Manzil
(vii) The government has ignored the legal position that once Regulation 13 of the Zoning Regulations, 1981 is “incorporated” in the Zoning Regulations, 2010, the said Regulation would continue to be alive even if the parental Regulation, namely Regulation 13 of the Zoning Regulations, 1981 were repealed.
(viii) The government has ignored the fact that since Regulation 13 of the Zoning Regulations, 1981 continues to exist, the protection given to the “protected heritage building” continues to be alive.
(ix) The government has ignored the fact that if any modification, development, re-development or demolition of a heritage building is required, then the procedure prescribed under the Regulation 13(2) of the Zoning Regulations, 1981 necessarily has to be followed. Yet, the government have not taken any permission from the HMDA prior to taking the decision on 18.06.2019.
(x) The government has tried to achieve a goal indirectly, which it could not have achieved directly. Therefore, the government, while taking the decision, have violated the provisions of Section 15 of the HMDA Act, and acted contrary to Regulation 9 (A) (ii) of Zonal Regulations, 2010.
(xi) The government have also ignored the earlier of the Court directing the government to seek its permission before modifying or demolishing or altering any structure declared as heritage, under Regulation 13 of the Zoning Regulations, 1981.
(xii) The government has equally ignored the relevant factor that the identity of an individual is moulded by his/here culture, history and heritage. Therefore, preservation of heritage has been incorporated to be part of “life” enshrined in Article 21 of the Constitution of India.