Calcutta High Court (Appellete Side)
Ambee Engineering Pvt. Ltd. & Anr vs The Commissioner Of Police Kolkata & Ors on 11 March, 2026
IN THE HIGH COURT AT CALCUTTA
2026:CHC-AS:389
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
RESERVED ON: 16.12.2025
DELIVERED ON: 11.03.2026
PRESENT:
THE HON'BLE MR. JUSTICE GAURANG KANTH
WPA 2445 OF 2025
AMBEE ENGINEERING PVT. LTD. & ANR.
VERSUS
THE COMMISSIONER OF POLICE KOLKATA & ORS.
Appearance: -
Mr. Srijib Chakraborty, Adv.
Mr. Sumitava Chakraborty, Adv.
Mr. Snehasish Dey, Adv.
.....for the Petitioner
Mr. Biswaroop Bhattacharya, Adv.
Ms. Bratati Pramanick, Adv.
.....for the Respondent no. 11
Mr. Sandipan Banerjee, Adv.
Mr. Ankit Sureka, Adv.
.....for the HMC
Mr. Santanu Kumar Mitra, Adv.
Mr. Sirsanya Bandopadhyay, Adv.
Mr. Rajat Dutta, Adv.
Mr. Bishnupada Jana, Adv.
.....for the State
WITH
WPA 25157 OF 2024
(C.A.N. 1 OF 2025)
ATIN KUMAR BANDOPADHYAY
VERSUS
HOWRAH MUNICIPAL CORPORATION & ORS.
Appearance: -
Mr. Biswaroop Bhattacharya, Adv.
Ms. Bratati Pramanick, Adv.
.....For the petitioner
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Mr. Sandipan Banerjee, Adv.
Mr. Ankit Sureka, Adv.
.....for the HMC
Mr. Santanu Kumar Mitra, Adv.
Mr. Sirsanya Bandopadhyay, Adv.
Mr. Arka Kumar Nag, Adv.
Mr. Amartya Pal, Adv.
.....for the State
JUDGMENT
Gaurang Kanth, J. :-
1. The core question in both the matters is whether the Respondent Municipal
Corporation was justified in imposing certain conditions based on a
purported security threat to the State Secretariat, Nabanna, a declared
“security zone” under the notification dated 04.09.2019, while granting
sanction for the construction of proposed G+4 residential building at
Premises No. 80/2, Kshetra Mohan Banerjee Lane, P.S. Shibpur, Ward No.
33, Howrah-711102.
2. WPA 25157/2024 has been filed by the owner of the said premises,
whereas WPA 2445/2025 has been filed by the Developer. In view of the
common issue involved, this Court considers it appropriate to dispose of
both the matters by this common judgment.
3. The facts leading to the filing of the present writ Petitions are as follows.
4. Mr. Atin Kumar Bandhopadhyay (Petitioner in WPA 25157/2024 and
Respondent No. 11 in WPA 2445/2025) (hereinafter referred to as the
‘Petitioner Owner’) is the absolute owner of the properties comprised in
Howrah Municipal Corporation Holding Nos. 78, 79/28, and 80/2, Kshetra
Mohan Banerjee Lane, Post Office and Police Station Shibpur, Ward No. 33,
District Howrah, PIN-711102. These holdings stood duly mutated in the
name of the Petitioner Owner. Subsequently, the aforesaid holdings were
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amalgamated in the records of the Respondent Municipal Corporation asHolding No. 80/2, Kshetra Mohan Banerjee Lane, P.O. and P.S. Shibpur,
Ward No. 33, District Howrah, PIN-711102, measuring an area of 6
Cottahs, 9 Chittacks, and 17 sq. ft., more or less, including the common
passage.
5. The Petitioner Owner entered into a Development Agreement and a
Development Power of Attorney, both dated 22.07.2019, with M/s Ambe
Engineering Pvt. Ltd. (hereinafter referred to as the ‘Petitioner Developer’)
for the demolition of the existing old two storied structure and development
of the premises by constructing a G+4 storied residential building having a
proposed height of 15.49 metres.
6. Pursuant to the Development Agreement and the Power of Attorney, the
Petitioner Developer submitted the building plan on 27.02.2020 along with
the requisite fees for sanction of the proposed G+4 residential building. The
Petitioners also obtained a Fire Clearance Certificate dated 16.10.2020
from the West Bengal Fire and Emergency Services and had earlier
conducted a soil investigation in December 2019 for the proposed
structure.
7. The premises in question is situated within a 500 metre radial distance
from the State Secretariat, Nabanna, which has been declared as a
“Security Zone” by the Government of West Bengal vide notification dated
04.09.2019 issued in exercise of powers under Sections 243 and 244 of the
Howrah Municipal Corporation Act, 1980. Section 244 prohibits the
sanction of any building exceeding 15.5 metres in height within a 500
metre radius of such ‘Security zones’ from the standpoint of security.
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8. Although the Petitioner Developer sought permission for a structure having
a height of 15.49 metres, the Respondent No. 7 (Commissioner, Howrah
Municipal Corporation) vide letter dated 13.10.2020 sought the views and
observations of Respondent No. 2 (Commissioner of Police) regarding
sanction of the building plan. In response, Respondent No. 3, vide
communication dated 29.12.2020, raised two concerns: (i) demolition of the
existing structure would generate severe pollution around Nabanna; and (ii)
a large number of labourers required for demolition and construction could
pose a security risk to the State Secretariat. Consequently, by letter dated
23.08.2021, the Petitioners were called upon to explain how these concerns
would be addressed.
9. The Petitioner Developer, vide letter dated 23.08.2021, submitted its
proposal outlining the measures intended to address and mitigate the
concerns raised by Respondent No. 3.
10. Despite receipt of the Petitioner Developer’s response, no further
communication was issued by Respondent No. 2. Consequently, the
Petitioner Developer, vide letters dated 19.01.2022 and 13.04.2022,
requested Respondent No. 7 to issue the sanctioned building plan.
Respondent No. 7 thereafter forwarded the said representations to
Respondent No. 3 seeking its final opinion on the matter. However, no
response have been received.
11. In view of the prolonged inaction on the part of the Municipal Authorities,
the Petitioner Developer filed WPA 29098/2024, which however came to be
dismissed as withdrawn vide order dated 30.04.2024 owing to technical
defects.
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12. The Petitioner Owner filed W.P. No. 12094/2024 submitting that the
existing structure was in a dilapidated condition and seeking permission to
demolish the same. This Court, vide order dated 15.07.2024, allowed the
said writ petition and directed that the demolition be carried out under the
supervision of a Chartered Engineer. The dilapidated structure was
accordingly demolished pursuant to this Court’s directions.
13. Meanwhile, the Petitioners filed another writ petition being WPA 477/2024
seeking a direction upon the Respondents to sanction the building plan.
This Court, vide order dated 24.05.2024, directed Respondent No. 7 to
consider the representation of the Developer and to pass a reasoned order
after affording an opportunity of hearing to all concerned within 12 weeks.
In compliance with the said directions, Respondent No. 7 heard all the
parties, including the police authorities, and passed a speaking order dated
24.09.2024 granting conditional permission for construction of a G+4
storied building of height 15.49 metres. The Respondent No. 7 imposed 17
conditions at the instance of Respondent No. 2 for execution of the
construction. Aggrieved thereby, the Owner and the Developer have filed
the present writ petitions.
Submission on behalf of the Petitioners
14. Mr. Srijib Chakraborty, learned counsel appearing for the Petitioner
Developer, opened the submissions by contending that under the scheme
of the Howrah Municipal Corporation Act, 1980, the exclusive statutory
authority to sanction a building plan vests in Respondent No. 7, the
Municipal Commissioner. The police authorities, including Respondent No.
3, have no role assigned under the statute in the process of grant or refusal
of building sanction.
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15. Drawing the attention of the Court to Sections 243 and 244 of the Act,
learned counsel submitted that once an area is declared a “Security Zone”,
the only restriction statutorily contemplated is the prohibition or regulation
of buildings exceeding 15.5 metres in height within a 500 metre radius of
such strategic installations, from the standpoint of security. The State
Government, by notification dated 04.09.2019, has already exercised this
power. Consequently, Section 244 exhausts the field of security related
restrictions, and no additional limitations are envisaged by the legislature.
Despite this clear statutory framework, Respondent No. 7 unnecessarily
and erroneously sought observations from Respondent No. 3, who has no
statutory role whatsoever in the sanctioning process.
16. Learned counsel placed reliance on the decision of this Court in
Maniruddin Bepari v. Chairman of the Municipal Commissioners,
Dacca, reported as 1935 ILR 295 Cal, and the judgment of the Hon’ble
Supreme Court in State of Odisha v. Satish Kumar Ishwardas
Gajbhiye, reported as (2021) 17 SCC 90, to submit that while a natural
person may undertake all lawful acts unless prohibited by law, a statutory
authority can act only within the four corners of the statute that creates it.
In the present case, the Act confers no power upon the police authorities to
influence or dictate the terms of building sanction. The conditions imposed
by Respondent No. 7 at the instance of Respondent No. 3 are therefore
ultra vires, arbitrary, and devoid of legal authority.
17. Learned counsel further assailed specific conditions imposed under the
impugned order, especially, Condition No. 4 mandating construction of a
ten-foot-high “view cutter” around the roof, Condition No. 5 prohibiting
windows or balconies facing the security zone, and Condition No. 16
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requiring repeated character verification of occupants. It was submitted
that these conditions are excessively restrictive, intrude into the peaceful
enjoyment of property, and are wholly beyond the scope of statutory
regulation. While granting building sanction, Respondent No. 7 is required
to examine only compliance with statutory norms and is not empowered to
impose additional constraints not contemplated by law.
18. Learned counsel for the Petitioner Owner further submitted that the
impugned order dated 24.09.2024, insofar as it incorporates conditions not
traceable to the Howrah Municipal Corporation Act, 1980 or the applicable
building rules, is manifestly arbitrary and unsustainable. Reliance was
placed on Bishambhar Dayal Chandra Mohan v. State of U.P., reported
as (1982) 1 SCC 39, to contend that executive or administrative
instructions, including police inputs, cannot curtail lawful proprietary or
developmental rights in the absence of express statutory sanction. Since
the proposed construction of 15.49 metres admittedly conforms to Section
244 of the Act and all applicable norms, the Respondent Corporation
lacked authority to impose extra statutory, precautionary conditions based
solely on perceived security concerns.
19. It was further contended that the obligation of Respondent No. 3 is to
ensure security and provide protection where threat perception exists, but
such responsibility cannot be discharged by imposing restrictions upon
adjacent landowners and thereby curtailing their right to use and enjoy
their property in a lawful manner.
20. Learned counsel also pointed out that several neighbouring premises,
including Premises Nos. 81/2, 78+79/30, and 78+79/5 at Kshetra Mohan
Banerjee Lane, all situated within approximately 100 metres of the
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Nabanna Security Zone, are multi-storied buildings having windows facing
Nabanna. None of these premises are subject to view cutters or occupant
verification requirements. The selective imposition of such conditions upon
the Petitioners’ premises is therefore discriminatory and arbitrary.
21. Reliance was also placed on the compliance report dated 17.02.2025 issued
by the Respondent Corporation, wherein it was categorically admitted that
Conditions Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16 and 17 have no
statutory backing under the Howrah Municipal Corporation Act, 1980 or
the KMC Building Rules, 2009, as amended. The report further clarified
that the proposed height of 15.49 metres is in conformity with the
Government Notification and that no fire clearance is required since the
height does not exceed 15.5 metres, thereby establishing that the
impugned conditions were imposed solely at the instance of Respondent
No. 3 and not as statutory prerequisites.
22. Mr. Bishwaroop Bhattacharya, learned Senior Counsel appearing for the
Petitioner Owner, adopting the submissions advanced on behalf of the
Developer, further submitted that under the guise of security concerns, the
Respondents cannot curtail the Owner’s lawful right to enjoy and develop
his property, and that no condition beyond the statutory restrictions
contained in Sections 243 and 244 of the Act can be imposed.
23. In view of the aforesaid submissions, learned counsel for the Petitioners
prayed for interference with, and setting aside of, the non-statutory
conditions imposed in the reasoned order dated 24.09.2024.
Submission on behalf of Respondent Nos. 1-3 (Police Authorities)
24. Per contra, Mr. Santanu Kumar Mitra, learned counsel appearing for
Respondent Nos. 1 to 3, opposed the writ petitions and supported the
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impugned order dated 24.09.2024. It is submitted that the subject
premises are situated well within 500 metres of Nabanna, the State
Secretariat, which has been notified as a “Security Zone” by the
Government of West Bengal vide notification dated 04.09.2019 issued
under Sections 243 and 244 of the Howrah Municipal Corporation Act,
1980. Having regard to the strategic importance and heightened security
sensitivity of the area, the police authorities were duty-bound to place their
security assessment before the Municipal Commissioner to ensure that
construction activity in the vicinity does not compromise the safety and
security of the State Secretariat.
25. Learned counsel submits that assessment of threat perception lies
exclusively within the domain of the police and specialised intelligence
agencies, who act on confidential and classified inputs which cannot be
placed in the public domain. The conditions imposed under the impugned
order represent a composite set of security recommendations evolved by
expert agencies responsible for safeguarding Nabanna. Placing reliance on
Gobind v. State of Madhya Pradesh, reported as (1975) 2 SCC 148, it is
contended that individual rights, including property-related rights, may
legitimately be subjected to reasonable restrictions in furtherance of
compelling State interests such as public order and security.
26. Learned counsel further submits that the security measures such as
installation of CCTV cameras, 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” issued by the Ministry of Home Affairs, Government of India.
These guidelines, based on long-standing experience in VIP and strategic
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asset protection, constitute a recognised framework for mitigating
surveillance and access-related risks. Reliance is placed on Om Prakash
Soni v. State of Punjab, reported as 2022 SCC OnLine P&H 2028, to
contend that administrative authorities are entitled to rely upon expert
inputs and security advisories while discharging statutory functions
impacting public safety.
27. It is submitted that unless the prescribed security measures are enforced,
the Nabanna Approach Ramp Road and sensitive areas of the Secretariat
would remain susceptible to surveillance from the proposed G+4 building,
posing a tangible risk to protectees commuting to and from Nabanna.
Learned counsel submits that courts ought not to second-guess such
security assessments, particularly when they emanate from expert
agencies, a principle reiterated by the Hon’ble Supreme Court in Ramveer
Upadhyay v. R.M. Srivastava, reported as (2015) 13 SCC 370.
28. While Section 244 of the Act expressly regulates construction exceeding
15.5 metres, learned counsel submits that the declaration of a Security
Zone necessarily carries with it incidental and ancillary security-related
controls. The police authorities, being statutorily entrusted with the
protection of high-security installations, are competent to advise the
Municipal Commissioner on matters incidental to building permission
within such sensitive zones. In this regard, reliance is placed on Union of
India v. Ranchi Municipal Corporation, reported as 2024 (1) High
Court Cases (Jhar) 333, wherein it was held that municipal powers must
be exercised in coordination with other statutory authorities when public
safety and national security concerns are involved.
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29. Learned counsel submits that the Municipal Commissioner is empowered
to impose reasonable conditions while granting building permission,
particularly to prevent nuisance, obstruction, or danger to life and
property. Such power has been recognised in Howrah Municipal
Corporation v. Ganges Rope Co. Ltd., reported as (2004) 1 SCC 663,
wherein the Supreme Court upheld the authority of municipal bodies to
regulate construction in the interest of public safety and orderly urban
governance. The impugned conditions are regulatory and precautionary in
nature and are intended solely to prevent security breaches in the vicinity
of Nabanna.
30. It is further contended that conditions such as erection of a ten-foot-high
view cutter, restrictions on openings facing the Security Zone, and
mandatory verification of occupants are proportionate responses to
legitimate security concerns relating to vantage visibility and access
control. Placing reliance on Friends Colony Development Committee v.
State of Orissa, reported as (2004) 8 SCC 733, learned counsel submits
that planned development and regulatory oversight cannot be compromised
on the ground of individual inconvenience, particularly where larger public
interest is involved.
31. Learned counsel further submits that the right to property or to raise
construction is not absolute and is subject to reasonable restrictions in the
interest of public order and security, as recognised under Articles 19(2) and
19(5) of the Constitution. In Dharam Chand v. Chairman, NDMC,
reported as (2015) 10 SCC 612, the Supreme Court held that private
rights must yield to public interest where regulatory action is taken within
the bounds of law to protect safety and civic order.
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32. The contention of discrimination based on the existence of neighbouring
buildings without similar restrictions is also refuted. Learned counsel
submits that each construction proposal is assessed on its own facts,
considering elevation, design, line of sight, and threat perception at the
relevant time. The mere existence of older constructions cannot preclude
authorities from imposing appropriate conditions on new developments,
particularly in evolving security environments.
33. It is lastly submitted that pursuant to the order of this Court dated
24.05.2024, the Petitioners were afforded full opportunity of hearing, and
the impugned order was passed after due consideration of all
representations and security inputs. No arbitrariness, mala fides, or
jurisdictional infirmity has been demonstrated so as to warrant
interference under Articles 226 or 227 of the Constitution.
34. In view of the aforesaid submissions, learned counsel for Respondent Nos.
1 to 3 prays for dismissal of the writ petitions.
Submissions on behalf of the Respondent Nos. 4-9 (Howrah Municipal
Corporation -HMC)
35. Mr. Sandipan Banerjee, learned counsel appearing for the Howrah
Municipal Corporation (HMC), submits that the impugned order dated
24.09.2024 was passed in due exercise of statutory powers under the
Howrah Municipal Corporation Act, 1980 and the applicable building
regulations.
36. It is contended that the subject premises admittedly lie within a radius of
500 metres from Nabanna, the State Secretariat, which has been notified
as a “Security Zone” by Government Notification dated 04.09.2019 issued
in exercise of powers under Sections 243 and 244 of the Act. Upon such
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notification, the Corporation is mandatorily required to factor in security-
related inputs furnished by the designated police authorities while
considering applications for building permission.
37. Learned counsel submits that the Municipal Commissioner is the
competent statutory authority to grant building sanction and is empowered
to impose reasonable and necessary conditions in the interest of public
safety, security, and prevention of nuisance. The conditions incorporated in
the impugned order were imposed only after receipt and consideration of
the security-related observations and recommendations made by the police
authorities entrusted with the security of Nabanna.
38. It is further submitted that the Corporation does not independently assess
threat perception and is entitled to rely upon the expert evaluation of the
police and other specialised security agencies. The conditions requiring
installation of CCTV cameras, erection of view cutters, regulation of
windows and balconies facing the restricted zone, and verification of
occupants are stated to be precautionary in nature, proportionate, and
directly connected with preserving the sanctity and security of the notified
Security Zone.
39. Learned counsel submits that, pursuant to the order of this Court dated
24.05.2024, the Petitioners were afforded a full and effective opportunity of
hearing and that their objections were duly considered prior to passing of
the impugned order. It is therefore contended that the order does not suffer
from arbitrariness or violation of the principles of natural justice.
40. However, learned counsel for HMC, with commendable fairness, admits
that Conditions Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16 and 17 imposed
under the impugned order do not have express statutory backing either
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under the Howrah Municipal Corporation Act, 1980 or under the Kolkata
Municipal Corporation Building Rules, 2009, as amended from time to
time. It is further admitted that the Respondent Corporation is also not in a
position to ensure the compliance of the said conditions as same is beyond
the scope of the Act and Rules framed thereunder. The proposed building
height of 15.49 metres is in conformity with the Government Notification
and that no fire safety clearance is statutorily required since the height
does not exceed 15.5 metres. Learned counsel candidly acknowledges that
the aforesaid conditions were imposed solely on the basis of the requisition
made by Respondent No. 3 and do not constitute mandatory statutory
prerequisites for grant of building sanction.
Legal Analysis
41. This Court has carefully considered the rival submissions advanced by
learned counsel for the parties, perused the pleadings and materials on
record, and examined the judicial precedents relied upon by both sides.
42. It is not in dispute that the building plan submitted by the Petitioner
Developer conforms to all statutory requirements prescribed under the
Howrah Municipal Corporation Act, 1980 and the applicable Building
Rules, and that the proposed construction, with a height of 15.49 metres,
does not violate the statutory ceiling of 15.5 metres stipulated under
Section 244 of the Act. The controversy in the present writ petitions is
confined to the legality and permissibility of certain conditions incorporated
in the reasoned order dated 24.09.2024.
43. It is also undisputed that the premises in question fall within a 500 metre
radius of Nabanna, the State Secretariat, which has been notified as a
“Security Zone” by the Government of West Bengal vide notification dated
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04.09.2019 issued under Sections 243 and 244 of the Act. The statutory
consequence of such notification is clearly delineated by the legislature,
namely, a prohibition or restriction on construction exceeding 15.5 metres
within the notified radius from the standpoint of security.
44. Considering the sensitive location of the premises, Respondent No. 7
sought inputs from the police authorities, who, relying upon general
security guidelines including the “Yellow Book” issued by the Ministry of
Home Affairs, recommended a set of conditions to be incorporated in the
building permission. The Respondents have placed reliance on several
decisions, including Dharam Chand (supra), Friends Colony
Development Committee (supra), Howrah Municipal Corporation v.
Ganges Rope Co. Ltd. (supra), and Ramveer Upadhyay (supra), to
contend that municipal authorities possess regulatory powers to impose
reasonable conditions in public interest, and that individual rights may
yield to considerations of safety, planning, and security.
45. There can be no quarrel with the aforesaid propositions of law. The
decisions relied upon by the Respondents unequivocally recognise that
municipal authorities are entrusted with the responsibility of ensuring
planned development, public safety, and orderly regulation of construction
activity, and that courts ought to exercise restraint in matters involving
technical or security assessments. However, these very judgments also
underscore a critical limitation: such regulatory powers must be exercised
strictly within the confines of the statute and cannot transgress into areas
not sanctioned by law.
46. Section 175 of the Howrah Municipal Corporation Act, 1980 empowers the
Municipal Commissioner to sanction building plans that conform to
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in
matters concerning safety, planning, and regulatory compliance. However,
as held in Howrah Municipal Corporation v. Ganges Rope Co. Ltd.
(supra), municipal powers, though wide, are not untrammelled and must
remain traceable to statutory authority. Executive discretion cannot be
exercised in a manner that is arbitrary, disproportionate, or destructive of
rights expressly protected by law.
47. Significantly, none of the judgments relied upon by the Respondents
authorise the imposition of conditions that are wholly alien to the statutory
scheme governing building regulation. On the contrary, the law laid down
in Bishambhar Dayal Chandra Mohan (supra), squarely governs the
present issue. The Hon’ble Supreme Court therein held that executive or
administrative action, howsoever well intentioned, cannot impose
restrictions on lawful proprietary or developmental rights in the absence of
express statutory sanction, and that perceived exigencies or administrative
convenience cannot substitute legislative authority.
48. In the present case, the Petitioners have confined their challenge to
Condition Nos. 4, 5 and 16. The central question, therefore, is whether
these conditions can be justified as reasonable, proportionate, and
statutorily permissible restrictions under Sections 175, 243 and 244 of the
Act, read with Articles 14, 19 and 300A of the Constitution.
Condition Nos. 4 and 5
49. Condition No. 4 mandates the construction of a ten-foot-high view cutter
along the roof of the proposed building, while Condition No. 5 prohibits
windows, balconies or open access facing the “prime scrutiny zone.” The
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avowed object of these conditions is to prevent visual access towards the
notified security zone.
50. A careful examination of the statutory framework reveals that neither
Section 175 nor Sections 243 and 244 of the Act authorise the Municipal
Commissioner to mandate permanent visual barriers or to prohibit basic
architectural features such as windows and balconies in a building that
otherwise conforms to statutory norms. Sections 243 and 244 are confined
to height based restrictions in notified security zones; they do not
contemplate interference with light, ventilation, or the fundamental design
of residential structures.
51. It is the specific stand of the respondent municipal Corporation that
Conditions Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16 and 17 imposed under
the impugned order do not have express statutory backing either under the
Howrah Municipal Corporation Act, 1980 or under the Kolkata Municipal
Corporation Building Rules, 2009, as amended from time to time. Further
the Respondent Corporation is also not in a position to ensure the
compliance of the said conditions as same is beyond the scope of the Act
and Rules framed thereunder.
52. On the contrary, the applicable Building Rules framed under the Act
mandate that all habitable rooms must have adequate openings, windows,
and ventilation. A blanket prohibition on windows or balconies and the
imposition of a permanent ten-foot-high obstruction directly contradict
these mandatory norms. Such conditions, therefore, are not merely
regulatory but destructive of the statutory scheme itself.
53. While the Respondents have rightly relied upon Friends Colony
Development Committee (supra) to emphasise the importance of planned
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development, that judgment does not sanction measures that render 2026:CHC-AS:389
a
residential building incompatible with basic habitability standards
prescribed by law. Planned development cannot be achieved by negating
the very building regulations enacted for public health and welfare.
54. The right to property under Article 300A and the right to carry on lawful
activity under Article 19(1)(g) permit regulation, but not annihilation, of
rights. The doctrine of proportionality requires that restrictions must adopt
the least intrusive means available. In the present case, less restrictive
alternatives, such as enhanced surveillance, policing, or technical security
measures, were available and are routinely employed in urban security
contexts. The impugned conditions, by contrast, impose a permanent and
excessive burden on lawful enjoyment of property.
55. The Petitioners have also demonstrated that similarly situated buildings
within the same 500 metre radius have not been subjected to comparable
restrictions. The Respondents have failed to furnish any objective or
rational basis for singling out the Petitioners’ premises. Such selective
imposition falls foul of Article 14, which proscribes not only discrimination
but also arbitrary and capricious exercise of power.
56. Accepting the Respondents’ contention that mere line of sight constitutes a
sufficient security threat would lead to untenable consequences, requiring
wholesale obstruction of windows and balconies across vast urban areas
surrounding strategic buildings, an outcome neither contemplated by the
legislature nor supported by precedent.
57. Accordingly, this Court holds that Condition Nos. 4 and 5 are ultra vires
the Howrah Municipal Corporation Act, inconsistent with mandatory
building norms, disproportionate to the stated objective, and violative of
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Articles 14, 19(1)(g) and 300A of the Constitution. These conditions cannot
be sustained.
Condition No. 16
58. Condition No. 16 requires verification of the “character antecedents of all
existing and future dwellers.” This condition, on its face, travels entirely
beyond the domain of building regulation.
59. The Act does not confer any power upon the Municipal Commissioner to
insist upon police verification of residents as a precondition for building
plan sanction. Building control laws regulate structures, not the identity or
antecedents of occupants. Even the judgments relied upon by the
Respondents, including Dharam Chand (supra) and Ramveer Upadhyay
(supra), do not authorise such surveillance oriented conditions to be grafted
onto building permissions.
60. Even assuming that the premises falls within a 500 metre radius of a
notified security zone, the duty to maintain vigilance rests with the security
and law enforcement agencies in the ordinary course of their functions. The
authorities are empowered to monitor or verify individuals in public
interest whenever required under law, however, such routine policing
activity cannot be converted into a precondition for an owner to obtain a
lawful building plan approval. Nor can it be interpreted to suggest that the
owner is required to disclose or furnish details of every dweller to any
authority. Introducing such a condition would create an indirect system of
compulsory police clearance for residence, something wholly alien to the
governing statute.
61. Moreover, mandatory and recurring verification of all occupants constitutes
a serious and unjustified intrusion into personal liberty and privacy
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protected under Article 21, bears no rational nexus with the statutory
purpose of building regulation, and is unguided by any legislative
standards. It is arbitrary, disproportionate, and selectively imposed,
thereby offending Article 14.
62. In light of the above, Condition No. 16 is held to be ultra vires the Act,
constitutionally impermissible, and unsustainable in law.
63. Consequently, while this Court recognises the legitimacy of security
concerns and the authority of municipal and police bodies to act in
coordination within the bounds of law, it reiterates the settled principle laid
down in Bishambhar Dayal Chandra Mohan (supra) that executive
discretion cannot transgress statutory limits. The impugned order dated
24.09.2024 is therefore liable to be interfered with to the extent indicated
above.
Conclusion
64. Accordingly, 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
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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.
65. For the reasons discussed hereinabove, 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.
66. 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.
67. In the result, both the writ petitions are partly allowed. Condition Nos. 4, 5
and 16 annexed to the building plan sanction are quashed and set aside as
arbitrary, disproportionate, and without statutory foundation. The
remaining conditions shall continue to operate.
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68. The Respondents are directed to process and finalise the Petitioners’
building-plan sanction strictly in accordance with law and without insisting
upon compliance with the quashed conditions. The application seeking
sanction of the building plan shall be considered and disposed of within a
period of twelve weeks from the date of service of a copy of this judgment.
69. Pending applications, if any, stand disposed of.
(Gaurang Kanth, J.)
SAKIL AMED (P.A)