Calcutta High Court Upholds Conviction Of Developer, Owner For Illegal G+3 Building, Says Actual Collapse Not Needed To Prove Hazard
The Calcutta High Court has upheld the conviction of a developer and a property owner for raising an unauthorised four-storeyed building in a congested Kolkata lane, holding that actual structural collapse or post-facto forensic evidence is not necessary to establish an offence under Section 401A of the Kolkata Municipal Corporation Act, 1980.
Justice Uday Kumar dismissed the criminal revision petition filed by Biplab Saha and Shukla Das, who challenged their conviction for constructing a G+3 building at premises no. 26/D, Dr. Panchanan Mitra Lane, in violation of a sanctioned plan permitting construction only up to G+1.
The Court observed that unauthorised construction in a congested metropolis is not merely a civil infraction but can directly affect public safety and civic infrastructure.
“When developers and property owners choose to treat municipal sanction limits as mere suggestions rather than binding commands, the criminal law must step in to enforce discipline,” the Court said.
The prosecution case arose from a complaint lodged by an Assistant Engineer of the Kolkata Municipal Corporation on February 12, 2017. The sanctioned building plan, issued on March 31, 2016, permitted construction only up to the first floor because of the narrow access passage.
The prosecution alleged that the petitioners instead raised a four-storeyed structure, creating risks to human life and potentially disrupting water supply, drainage, sewerage and road traffic, besides causing fire hazards.
The Trial Court had convicted both petitioners under Section 401A of the KMC Act and sentenced them to three years' rigorous imprisonment and a fine of ₹50,000 each.
The First Appellate Court subsequently modified the sentence. Saha, the developer, was sentenced to three months' simple imprisonment and a fine of ₹50,000, while Das, the property owner, was sentenced to imprisonment till the rising of the court and a fine of ₹50,000.
The High Court noted that the prosecution had examined seven witnesses and produced sixteen exhibits, including the sanctioned plan, the Building Rule Infringement Statement and the original development agreement.
The Court found that the testimonies of municipal engineering officials, coupled with the documentary evidence, established that the permissible height of 6.7 metres had been grossly violated. The infringement statement also recorded deviations in the front, side and rear open spaces, FAR, ground coverage and height.
The petitioners argued that the prosecution had failed to produce independent forensic evidence, such as soil tests, structural stability audits or expert reports, to establish that the building actually endangered human life or public infrastructure.
Rejecting the contention, the Court referred to the language of Section 401A, which penalises construction that “endangers or is likely to endanger” human life or is likely to disrupt civic infrastructure or cause a fire hazard.
The Court held that the use of the disjunctive expression “endangers or is likely to endanger” means that actual structural collapse is not a prerequisite for conviction.
“When an unauthorised multi-storey structure (G+3) is erected in a congested urban lane against a restricted G+1 limit, the likelihood of a hazard is a direct statutory presumption grounded in objective physical reality,” the Court held.
It added that post-facto structural forensic audits or soil test reports are not mandatory once the physical existence and illegal inception of the unauthorised construction are conclusively proved through municipal records and ocular testimony.
The petitioners also challenged the initiation of the prosecution, arguing that the complaint had not been lodged by the Municipal Commissioner or a person duly authorised under Section 620 of the KMC Act.
They further contended that the stop-work notices had not been properly served upon the owner or occupier and that an earlier FIR dated October 30, 2016 had not been acted upon.
The High Court rejected these objections, holding that technical defects concerning internal administrative authorisation or file movement could not vitiate a prosecution that had proceeded through a full-fledged trial and resulted in concurrent findings of guilt.
The Court distinguished the decision in Mahendra Baid v. State of West Bengal & Anr., relied upon by the petitioners, observing that it concerned a petition for quashing proceedings at the threshold and a minor internal modification, unlike the large-scale unauthorised construction in the present case.
“Procedural technicalities at the threshold do not survive a completed trial where foundational guilt is thoroughly proved by robust ocular and documentary proof,” the Court said.
The Court also declined to interfere with the concurrent findings of the Trial Court and the First Appellate Court, reiterating that revisional jurisdiction is limited and is not akin to a second appeal.
It observed that both courts had properly evaluated the municipal records and the evidence of the engineering officials, and that the findings did not suffer from perversity, jurisdictional error or gross miscarriage of justice.
The Court further approved the appellate court's approach to sentencing, which had distinguished between the culpability of the commercial developer and that of the property owner.
While the developer's sentence was reduced to three months' simple imprisonment, the owner's sentence was reduced to imprisonment till the rising of the court, taking into account her age and status as a passive owner.
The High Court held that the appellate court had appropriately balanced deterrence and proportionality in sentencing.
Case: BIPLAB SAHA AND ANR. VS. KOLKATA MUNICIPAL CORPORATION AND ANR.
Case No: CRR No.520 of 2022