Andhra HC (Pre-Telangana)
M/S.Chowmohalla Palace Trust, Having ... vs The Greater Municipal Corporation Of ...
Author: A.Ramalingeswara Rao
Bench: A.Ramalingeswara Rao
THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO WRIT PETITION No.6820 OF 2008 21042014 M/s.Chowmohalla Palace Trust, having its office at Nazribagh, King Koti, Hyderabad, rep. by its authorized Signatory Sri Kis The Greater Municipal Corporation of Hyderabad, rep. by its Commissioner and others Respondents Counsel for the Petitioner: Sri R.Raghu Nandan Counsel for the Respondents: G.P.for Municipal Administration <Gist : >Head Note : ?Cases referred HONBLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.6820 of 2008 ORDER:
This year, marks the centenary of Great War and the establishment of H.H. The Nizams Archaeological Department. One r
2. The petitioner, M/s. Chow Mahalla Palace Trust which owns the Chow Mahalla Palace Complex, filed the present writ petition
3. Though, a Division Bench this Court, earlier in W.P.No.6583 of 2006 took up the issue relating to heritage structures in H
4. Heard the learned Senior Counsel for petitioner, the learned Standing Counsel for respondents 1 and 2, the learned Governm
5. The arguments of the learned counsel for petitioner centered around the illegal structures which came up around the Chow M
6. This Court, by order dated 31.03.2008, directed the GHMC and the HUDA to inspect the alleged illegal constructions carried During inspection it is observed certain unauthorized constructions around the Palace. At present all the construction wer
7. The report further states that the applicants who constructed buildings in the surrounding areas filed applications under
8. So far as the conservation of heritage buildings and maintenance of heritage precincts are concerned, the GHMC is apatheti
9. When the writ petition was taken up for further hearing and a direction was issued on 25.11.2013 directing the Commissione
10. It was further stated that the Government vide its memo No.1348/M1/2012, dated 12.07.2012, requested the Commissioner, GH
11. It was further stated that with regard to heritage precinct No.10, the HUDA issued guidelines to refer cases of all build
12. It was further stated that an Additional Chief City Planner has been appointed to look after and monitor all the heritage
13. As per the counter-affidavit of the 7th respondent, State of Andhra Pradesh, Section 59 of the Andhra Pradesh Urban Areas
14. The said Regulation deals with restriction on development or redevelopment or engineering operation or additions, alterat
15. It further states that on the advice of the Heritage Conservation Committee and on the recommendation of Vice-Chairman of
16. As per letter No.2995/HCC/P/H/97, dated 26.06.1999 of Vice-Chairman, HUDA addressed to the Commissioner, Municipal Corpor
17. The erstwhile HUDA issued a letter No.11137/HCC/Policy/Plg/HUDA/99, dated 15.05.2000, to the Commissioner and Special Off
18. It is pertinent to note that the counters state that as per Regulation No.13(7), the development within shall be in accor
19. The Government issued G.O.Ms.No.263 dated 14.05.2003 directing the GHMC to take up the responsibility of conservation, ma
20. The UNESCO in its General Conference in its 17th Session from 17th October to 21st November, 1972 adopted a convention on
21. Each State party to the said convention recognizes that the duty of ensuring the identification, protection, conservation
22. The International Council on Monuments and Sites (ICOMOS) works for the conservation and protection of cultural heritage
23. In 1957 in Paris, the First Congress of Architects and Specialists of Historic Buildings was held. The Second Congress w
24. In the tradition of the Athens and Venice Charters ICOMOS has in the years since its formation developed and adopted a nu Historic Gardens (Florence Charter) 1981 Charter for the Conservation of Historic Towns and Urban Areas (Washington Charter) 1987 Charter for the Protection and Management of Archaeological Heritage 1990 Charter on the Protection and Management of Underwater Cultural Heritage 1996 International Cultural Tourism Charter - Managing Tourism at Places of Heritage Significance 1999 Principles for the Preservation of Timber Structures 1999 Charter on the Built Vernacular Heritage 1999 ICOMOS Charter - Principles for the Analysis, Conservation and Structural Restoration of Architectural Heritage 2003 ICOMOS Principles for the Preservation and Conservation-Restoration of Wall Paintings 2003 ICOMOS Charter on Cultural Routes 2008 ICOMOS Charter for the Interpretation and Presentation of Cultural Heritage Sites (also known as the 'Ename Charter') 2008 Joint ICOMOS TICCIHPrinciples for the Conservation of Industrial Heritage Sites, Structures, Areas and Landscapes 2011 The Valletta Principles for the Safeguarding and Management of Historic Cities, Towns and Urban Areas 2011 (Supersedes the W In addition to the above there are fourteen other doctrinal texts. These include the 'Nara Document'. Many of the national committees of ICOMOS have adopted their own charters which set standards for heritage conservation pract Of the above, the Charter for the Conservation of Historic Towns and Urban Areas (Washington Charter) 1987 is of special sig PRINCIPLES AND OBJECTIVES:
1. In order to be most effective, the conservation of historic towns and other historic urban areas should be an integral par
2. Qualities to be preserved include the historic character of the town or urban area and all those material and spiritual el
a) Urban patterns as defined by lots and streets;
b) Relationships between buildings and green and open spaces;
c) The formal appearance, interior and exterior, of buildings as defined by scale, size, style, construction, materials, colo
d) The relationship between the town or urban area and its surrounding setting, both natural and man-made; and
e) The various functions that the town or urban area has acquired over time. Any threat to these qualities would compromise t
3. The participation and the involvement of the residents are essential for the success of the conservation programme and sho
4. Conservation in a historic town or urban area demands prudence, a systematic approach and discipline. Rigidity should be a METHODS AND INSTRUMENTS:
5. Planning for the conservation of historic towns and urban areas should be preceded by multidisciplinary studies. Conservat
6. Until a conservation plan has been adopted, any necessary conservation activity should be carried out in accordance with t
7. Continuing maintenance is crucial to the effective conservation of a historic town or urban area.
8. New functions and activities should be compatible with the character of the historic town or urban area. Adaptation of th
9. The improvement of housing should be one of the basic objectives of conservation.
10. When it is necessary to construct new buildings or adapt existing ones, the existing spatial layout should be respected,
11. Knowledge of the history of a historic town or urban area should be expanded through archaeological investigation and app
12. Traffic inside a historic town or urban area must be controlled and parking areas must be planned so that they do not dam
13. When urban or regional planning provides for the construction of major motorways, they must not penetrate a historic town
14. Historic towns should be protected against natural disasters and nuisances such as pollution and vibrations in order to s
15. In order to encourage their participation and involvement, a general information programme should be set up for all resid
16. Specialised training should be provided for all those professions concerned with conservation.
Thus, the above Charter gives guidance for conservation of heritage buildings.
25. In our Constitution, Article 51 A of the Fundamental Duties states that it shall be the duty of every citizen of India to
26. The Parliament made The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (for short, Act of 1958) and ame
27. The Andhra Pradesh Urban Areas (Development) Act, 1975 was enacted for the development of urban areas in the State accord
28. Sub-section (7) of Section 13 of the UAD Act states that the development of land, after commencement of the Act, shall be
29. The Andhra Pradesh Urban Art Commission Rules, 1978 were framed and Rule 8 of the said Rules deals with the powers and fu
30. The Government issued G.O.Ms.No.542, MA & UD Department, dated 14.12.1995, according approval to the Authority for additi ANNEXURE Under sub-section (1) of section 59 of the Andhra Pradesh Urban Areas (Development) Act, 1975 (Act No.1 of 1975) the Hyderab AMENDMENT In the said Zoning Regulations, after zoning regulation No.12, the following regulation shall be added namely:-
CONSERVATION OF LISTED BUILDINGS, AREAS, ARTEFACTS, STRUCTURES AND PRECINCTS OF HISTORICAL AND/OR AESTHETICAL AND/ OR ARCHITE
1. Applicability: This regulation will apply to those buildings, artifacts, structures and /or precincts of historical and / The Authority shall invite public objections and suggestions in three local daily newspapers before finalizing the list. Rest
2. Restriction on Development /Redevelopment /Repairs, etc:
(i) No Development or redevelopment or engineering operation or additions, alterations, repairs, renovation including the pai Provided that in exceptional cases, for reasons to be recorded in writing, the Vice-Chairman, Hyderabad Urban Development Aut Provided further that the power to overrule the recommendations of the Heritage Conservation Committee shall not be delegated
(ii) In relation to religious buildings in the said list, the changes, repairs, additions, alterations and renovations requir
3. Preparation of list of Heritage Buildings and Heritage Precincts: The said list of buildings, artifacts, structures and pr
4. Power to Alter, Modify of Relax Regulations: With the approval of Government and after consultation with the said Heritag
5. Permission to demolish or to make major alterations to Heritage Buildings may be granted only in exceptional cases by the
6. Grant of Transferable Development Rights in cases of loss of Development Rights: If any application for development is re
7. Maintaining Sky Line: Buildings included in Heritage Precincts shall maintain the sky line in the precinct (without any h
8. Repair fund: Buildings included in the said list shall be repaired by the owners/lessees of the said buildings themselves
9. Grading of the Heritage Buildings/Heritage Precincts: Heritage Buildings/Precincts may be graded into three categories. T Listing does not prevent change of ownership or usage. However such usage should be in harmony with the said listed precinct/ Grade-I Grade-II Grade-III A. Definition:
Heritage Grade-I Comprises of buildings, and precincts of national or historical importance, embodying excellence in architec B.Objective Heritage Grade-I richly deserves careful preservation C.Scope for changes No interventions would be permitted either on the exterior or interior unless it is necessary in the interest of strengthenin D.Procedure Development permission for the changes would be given by Vice Chairman Hyderabad Urban Development Authority on the advice of the Heritage Conservation Committee to be appointed by State Governmen E.Vistas/Surrounding Development All development in areas surrounding Heritage Grade-I Shall be regulated and controlled, ensuring that it does not mar the gr Grade-II (A&B) Comprises of buildings of regional or local importance, possessing special architectural or aesthetic merit, c Heritage Grade-II deserves intelligent conservation Grade-II (A) internal changes and adaptive reuse will be generally allowed. But external changes will be subject to scrutiny.
Grade-II (B) In addition to above extension or additional buildings in the same plot or compound could, in certain circumstan Development permission for the changes would be given by Vice Chairman, Hyderabad Urban Development Authority in consultation Heritage Grade-III comprises of buildings, and precincts of importance for town scape including rock formations they evoke ar Heritage Grade-III deserves protection of unique features and attributes External and internal changes and adaptive reuse would generally be allowed. Changes can include extensions additional buildi Development permission would be give for changes by Vice-Chairman, Hyderabad Urban Development Authority itself but in conson APPENDIX - "F"
(Regulation No.13) REGULATIONS FOR THE GRANT OF TRANSFERABLE DEVELOPMENT RIGHT TO OWNERS/LESSEES OF HERITAGE BUILDINGS/HERITAGE PRECINCTS AND CO
1. As provided in Regulation 13(6), Development Rights of the owner/lessee of Heritage buildings who suffers loss of Developm
2. A Development Rights Certificate will be issued only on the satisfactory compliance with the conditions prescribed in thi
3. If a holder of a Development Rights Certificate intends to transfer it to any other person he will submit the Development 4 . A holder of a Development Rights Certificate who desires to use the Floor Space Index credit certified therein on a particular plot of land shall attach to his application for development p 5 . Development Rights Certificates may be used:-
On any plot in the same ward as that in which they have originated or in any ward in the suburbs except as specified in claus
6. A Development Right Certificate shall not be valid for use on receivable plots in the areas listed below:-
a) Recreation zones, parks, playgrounds as notified in Master Plan/Zonal Development Plans.
b) Open spaces earmarked in layouts.
c) Any heritage building.
d) Any Heritage Precinct except with the prior approval of the Heritage Conservation Committee and subject to compliance with
7. The uses that will be permitted for utilization of the Development Rights Certificates on account of transfer of development rights will be as under:-
Zone in which designated /reserved plot is situated Uses to be permitted in receiving areas
1. Residential Only residential uses and in Residential Zones only
2. Commercial (C-2) Commercial (C-2) uses if the plot where the Floor Space Index is to be utilized is situated In C-2 zone. Residential only in
3. Commercial (C-1) Commercial (C-1) if the plot where the Floor Space Index is to be utilized is situated in C-1 zone. Residential in Residential Zones.
4. Industrial (I-1), (I-2), (I-3) Residential only in Residential Zones.
8. Development Rights Certificates may be used on one or more plots of lands whether vacant or already developed or by the e
9. The Floor Space Index of a receiving plot shall be allowed to be exceeded by not more than 1.0 in respect of a Developmen
10. With an application for development permission, where an owner/lessee seeks utilization of Development Rights, he shall s
11. A Development Rights Certificate shall be issued by the Vice-Chairman, Hyderabad Urban Development Authority himself as C. ARJUNA RAO, PRINCIPAL SECRETARY TO GOVERNMENT, Sd/- SECTION OFFICER
31. Since the above Regulation provides for constitution of Heritage Conservation Committee by the Government, the Government
3. With a view to constitute the Heritage Committee to discharge its duties and functions under the said regulation, the Go
1. Retired Chief Secretary to Government of Andhra Pradesh -- Chairman
2. Structural Engineer having experience of 10 years in the field and membership of the institute of Engineer -- Member
3. Architects having 10 years experience and membership of the council of Architecture -- Member
(i) Specialised in Urban design project etc.
(ii) Heritage conservation Architect.
4. Director of State Archaeology --
5. An Environmentalist having in depth knowledge and experience of 10 years of subject matter -- Member
6. A City Historian having 10 years experience in the field -- Member
7. A representative of Organisation working for protection of natural heritage like rocks -- Member
8. A Senior Technical Officer of HUDA with expertise -- Member in the matter Secretary
(a) The Committee shall have the powers to Co-opt upto five additional members who may have lesser experience, but who have s
(b) The tenure of the members of category 1,2,3,5,6 and 7 above shall change after every 3 years, provided however that the s
4. The following are the terms of reference of the Heritage Conservation Committee.
1. to recommend to the Vice-Chairman, HUDA whether development permission should be granted under regulation No.13 and the co
2. to prepare supplementary list of buildings, precincts, areas artifacts, structures of historical, aesthetical architectura
3. to advise whether any relaxation, modification, alteration or variance of any of the zoning Regulations is called for unde
4. to advise the Vice Chairman, Hyderabad Urban Development Authority in the operation of these regulations to regulate or el
5. to advise whether development right certificate may be allowed to be consumed in a heritage precinct.
6. to advise the Vice-Chairman, HUDA to evaluate the cost of repairs to be given to the owners to bring the existing building
7. to prepare special designs and guidelines for listed buildings and control of height and essential faade characteristics
8. to prepare guidelines to be adhered to and to prepare other guidelines for the purposes of Regulation No.13.
9. to frame special regulations for heritage precincts and to advise the Vice Chairman, HUDA regarding the same.
10. to advise Vice Chairman, HUDA on any other issues as may be required from time to time during course of scrutiny and in o
11. to appear before Government either independently or through or on behalf of the Vice Chairman, HUDA in cases of appeals i
32. As stated above, the last such Committee was constituted under G.O.Ms.No.124 MA & UD dated 17.03.2010 for a period of thr
33. There is no clarity with regard to the definition of sky line or a heritage precinct as mentioned in the said Regula
34. Chambers 20th Century dictionary, states precinct and skyline as follows:
Precinct :n. a space, esp. an enclosed space, around a building or other object (also in pl.): a district or division within Skyline the horizon: a silhouette or outline against the sky.
35. The development plan for the erstwhile Municipal Corporation of Hyderabad area (HMDA core area) was sanctioned by the Gov
i) Pathergatti and surrounding areas.
ii) Charminar to Puranapul via Laad Bazaar
iii) Charminar to Falaknuma
iv) Begumbazaar and surrounding areas
v) MG Road and surrounding areas.
36. Subsequently, the HMDA Act, 2008 was enacted for the establishment of Metropolitan Development Authority for the purposes
37. The State of Maharashtra has become a pioneer in India making a special enactment for the protection of heritage building
38. In this case, the GHMC exhibited its total ignorance with regard to the subject matter. This Court has to time and aga
39. In view of the above situation, this writ petition is disposed of directing:
(i) the Government of Andhra Pradesh to constitute within a period of three months from the date of receipt of a copy of this
(a) the A.P. Urban Arts Commission which has not been functioning since 1983;
(b) the Heritage Conservation Committee whose term expired on 16.03.2013 and
(ii) the Government to communicate its decision to the Greater Hyderabad Municipal Corporation pursuant to its letter dated 1
(iii) the Commissioner, Greater Hyderabad Municipal Corporation, who is vested with the powers to protect the Heritage Buildi
(iv) the Commissioner, Greater Hyderabad Municipal Corporation to display a map of area of precinct prominently in respect
(v) the Commissioner, Hyderabad Metropolitan Development Authority to consult the Heritage Conservation Committee as and when
(vi) the Government of Andhra Pradesh to consider taking suitable legislative measures in placing Heritage Conservation Commi
(vii) the Greater Hyderabad Municipal Corporation to consult Heritage Conservative Committee with regard to the restrictions
(viii) the Government of Andhra Pradesh to consider passing of a separate legislation on the lines of State of Maharashtra fo
40. Subject to the above directions, the writ petition is disposed of. No order as to costs. As a sequel, Miscellaneous Peti ____________________________ A. RAMALINGESWARA RAO Date: 21.04.2014