The Calcutta High Court has quashed three conditions imposed by the Howrah Municipal Corporation on a building project near the State Secretariat, Nabanna, ruling that they violate constitutional rights and contravene building norms.
The conditions, which included erecting a 10-foot-high “view cutter” and prohibiting windows, balconies, or openings facing Nabanna, were deemed arbitrary and unconstitutional by Justice Gaurang Kanth.
Justice Kanth held that the conditions were “intrusive, disproportionate, and contrary to mandatory building norms”, and directed the municipality to process the building plan within 12 weeks.
The order read: “This Court holds that permitting the Municipal Corporation to impose conditions, which have no foundation in the governing statute, or which effectively impede lawful construction on the basis of speculative security apprehensions, would be manifestly inequitable and contrary to settled principles of constitutional and administrative law. The Howrah Municipal Corporation Act, 1980, does not contemplate such pre-emptive restrictions, and the fact that several similarly situated properties within
the same notified radius have already been developed without comparable conditions reinforces the arbitrariness of the impugned action. Security concerns, though undoubtedly legitimate, are neither static nor incapable of being addressed through continuous vigilance, policing, and post construction regulatory oversight. To allow such concerns to operate as a threshold bar on otherwise permissible development would amount to an unjustified and disproportionate deprivation of the Petitioners’ property rights, offending Articles 14 and 300A of the Constitution. The impugned conditions, therefore, cannot be sustained and are liable to be set aside to the extent indicated.”
The order further read, “…this Court is satisfied that Condition Nos. 4 and 5, which require the erection of a ten feet high view cutter and prohibit the provision of windows, balconies or openings facing the security zone, are unsupported by any statutory authority under the Howrah Municipal Corporation Act, 1980. These conditions are intrusive, disproportionate, contrary to mandatory building norms relating to light and ventilation, and amount to an arbitrary exercise of power, offending Articles 14 and 19(1)(g) of the Constitution. Similarly, Condition No. 16, which contemplates continuous character verification of every present and future dweller of the premises, is wholly foreign to the scheme of the Act. No provision of the statute empowers the Municipal Commissioner to impose pre-occupancy or ongoing police verification as a condition for sanctioning a building plan. The requirement is disproportionate, interferes with the privacy and liberty of residents, and lacks any rational nexus with the grant of a building permit. It is therefore unconstitutional and ultra vires.”
The case involves a G+4-storey building proposal with a height of 15.5 metres at 80/2, Kshetra Mohan Banerjee Lane, Shibpur, within 500 metres of Nabanna. In July 2019, the owner, Atin Kumar Bandopadhyay, and the developer, Ambe Engineering Private Limited, planned to demolish the old structure and build a new one.
The premises in question was declared a “Security Zone” by the West Bengal government in September 2019, under Sections 243 and 244 of the Howrah Municipal Corporation Act, 1980. Section 244 bars buildings over 15.5 metres tall within this radius for security reasons.
In February 2020, the developer applied before the Howrah Municipal Corporation for grant of sanction of plan and accordingly the developer prepared the land sketch and a building plan and submitted for approval.
The petitioner developer had sought permission for a 15.49-metre-tall structure, but the Howrah Municipal Corporation Commissioner asked the police commissioner for input on the building plan in October 2020.
The Assistant Commissioner of Police, Howrah, had raised two concerns in December 2020: demolition would cause pollution around Nabanna, and labourers involved could pose a security risk to the State Secretariat.
Consequently, the petitioners were asked to address the concerns, which they did, outlining the measures, on August 23, 2021.
Despite this, no further communication was issued by the Commissioner of Police, Howrah.
Consequently, the petitioner developer, through letters dated 19.01.2022 and 13.04.2022, requested the Commissioner of Howrah Municipal Commissioner to issue the sanctioned building plan.
But the commissioner forwarded the requests to the Assistant Commissioner of police for their opinion.
However, no response have been received.
The municipal authorities’ inaction prompted the developer to approach the Calcutta High Court and file a writ in 2024, but it was withdrawn due to technical issues.
The owner then filed another writ, citing the structure’s dilapidated state and seeking demolition permission. The court allowed the said writ petition, directing demolition under a Chartered Engineer’s supervision, which was carried out.
The petitioners then filed another writ petition seeking approval of the building plan. The court directed the Municipal Commissioner to consider the developer’s representation and pass a reasoned order within 12 weeks.
Following this, the municipal commissioner heard all parties, and granted conditional permission for construction of a G+4 building (15.49m tall) in September 2024, imposing 17 conditions.
The owner and developer have filed the present writ petitions.
Out of the 17 conditions, the developer’s counsel, Srijib Chakraborty, had opposed three conditions: building a 10-foot-high “view cutter” around the roof, banning windows or balconies facing the security zone, and requiring repeated occupant verification. They also argued that the same conditions were not imposed on adjacent property.
The police authorities’ counsel had argued that security measures, such as installation of CCTVs, erection of view cutters, regulation of windows and balconies, and verification of occupants, are not arbitrary inventions but flow from established security protocols, including the “Yellow Book” by the Ministry of Home Affairs.
The Howrah Municipal Corporation has been directed by the High Court to process and finalise building-plan sanction strictly in accordance with law, without insisting on the quashed conditions.