'Security Concerns Cannot Justify Non-Statutory Building Restrictions': Calcutta High Court Quashes Conditions On Project Near Nabanna

The Calcutta High Court has held that municipal authorities cannot impose building-sanction conditions that lack statutory backing merely on the basis of security concerns raised by police authorities regarding nearby sensitive installations. The Court observed that allowing such conditions would permit executive authorities to override the statutory scheme governing building regulation.Justice Gaurang Kanth was dealing with petitions filed by a property owner and developer challenging certain conditions imposed while granting sanction for construction of a G+4 residential building near the State Secretariat, Nabanna, which falls within a notified “security zone.” The proposed structure had a height of 15.49 metres, which was within the 15.5-metre limit prescribed under the Howrah Municipal Corporation Act, 1980 for construction within 500 metres of a notified security installation.The dispute arose after the Howrah Municipal Corporation (HMC) granted conditional permission for the construction but incorporated several requirements based on inputs from the police authorities. Among them were conditions mandating the installation of a ten-foot-high “view cutter” along the rooftop, a prohibition on windows or balconies facing the security zone, and verification of the character and antecedents of all existing and future occupants of the building.The petitioners argued that these conditions were arbitrary and had no statutory basis. Significantly, the municipal corporation itself acknowledged before the Court that several conditions imposed in the sanction order, including those challenged, “do not have express statutory backing either under the Howrah Municipal Corporation Act, 1980 or under the… Building Rules.”Examining the statutory framework, the Court noted that the only security-related restriction contemplated by the law in such zones concerns height regulation of buildings, and not architectural features or occupant-related conditions. The Court emphasised that although municipal authorities have regulatory powers in matters of construction, “such regulatory powers must be exercised strictly within the confines of the statute and cannot transgress into areas not sanctioned by law.”On the requirement to construct a ten-foot-high view cutter and the prohibition on windows and balconies facing the security zone, the Court held that these measures had no basis in the statute and directly conflicted with mandatory building norms concerning ventilation and habitability. It observed 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.”The Court further noted that accepting the argument that mere “line of sight” could justify such restrictions would lead to impractical consequences. As the Court observed, “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.”The High Court also struck down the condition requiring verification of the character and antecedents of all residents of the building. It held that building control laws regulate structures, not the identity of occupants. The Court noted that “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.”The judge further observed that imposing such a requirement would effectively introduce a system of compulsory police clearance for residence, which is alien to the governing statute. The Court held that “mandatory and recurring verification of all occupants constitutes a serious and unjustified intrusion into personal liberty and privacy protected under Article 21.”While acknowledging that security concerns relating to Nabanna are legitimate, the Court emphasised that executive authorities cannot exceed statutory limits in the name of precaution. It cautioned that permitting authorities to impose non-statutory conditions based on speculative threats would amount to an “unjustified and disproportionate deprivation of the Petitioners' property rights.”Accordingly, the Court quashed Condition Nos. 4, 5 and 16 of the sanction order as arbitrary, disproportionate and lacking statutory foundation, while allowing the remaining conditions to continue. The authorities were directed to process and finalise the building plan sanction within twelve weeks without insisting on compliance with the quashed conditions.Case: ATIN KUMAR BANDOPADHYAY VERSUS HOWRAH MUNICIPAL CORPORATION & ORS.Case No: WPA 25157 OF 2024Click here to read order

'Security Concerns Cannot Justify Non-Statutory Building Restrictions': Calcutta High Court Quashes Conditions On Project Near Nabanna

Srinjoy Das

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