The Calcutta High Court has upheld a two-year sentence imposed on a building owner for carrying out unauthorised construction under the cover of a municipal permit that was limited to reconstruction of the roof of an existing two-storeyed structure.

Justice Uday Kumar held that a permission granted specifically for “reconstruction of roofs only” could not be treated as authorisation to completely demolish the existing load-bearing structure and raise a fresh multi-storeyed concrete framework without the requisite structural safeguards.

The Court was hearing a revision petition filed by Archana Agarwal challenging her conviction under Section 401A of the Kolkata Municipal Corporation Act, 1980. The trial court had sentenced her to two years' simple imprisonment and imposed a fine of ₹50,000, besides directing demolition of the unauthorised construction. The appellate court subsequently upheld the conviction and sentence.

The dispute concerned premises at 167, Muktaram Babu Street in Kolkata. Agarwal had purchased the property on December 15, 2014 and subsequently obtained a KMC sanction plan dated December 19, 2018.

The sanctioned plan, however, permitted only “reconstruction of roofs only” of the existing two-storeyed structure and contemplated supervision by a Licensed Building Surveyor and an Empanelled Structural Engineer.

During a spot inspection on April 16, 2019, KMC officials found that the entire original building had been demolished down to its base. A fresh structural framework comprising heavy reinforced concrete columns and tie beams had been raised in its place.

The inspection also revealed that the construction was not supported by the required structural stability certificates, soil testing or supervision by the Licensed Building Surveyor and Empanelled Structural Engineer.

Following the inspection, a complaint was lodged on May 2, 2019, leading to registration of Girish Park Police Station Case No. 45 of 2019. A charge sheet was subsequently filed under Section 401A of the KMC Act.

The petitioner argued before the High Court that the construction was covered by the sanctioned permission and that the RCC columns and tie beams were necessary for carrying out the work. It was also argued that there was no scientific material such as a structural audit, material-strength report or soil test to establish that the construction was dangerous.

Rejecting the argument, the High Court held that a restricted municipal permission for roof reconstruction could not authorise the complete demolition of the existing building and construction of a fresh multi-storeyed structure.

The Court observed that the limited permission could not become a “legal shield or blanket authorization” for completely demolishing the existing load-bearing structure and raising a new, unengineered concrete framework.

The Court further held that the prosecution was not required to produce laboratory reports regarding material strength or soil testing when the ocular, documentary and expert evidence sufficiently established the nature of the unauthorised construction and the deviations from the sanctioned plan.

The High Court also rejected the argument that the subsequent regularisation of the construction could wipe out the criminal liability arising from the unauthorised construction.

A regularisation order was passed on July 5, 2024 and the construction was subsequently compounded under Section 621(2) of the KMC Act. The Court, however, held that such subsequent regularisation or compounding could not retrospectively erase or nullify an already established criminal offence and conviction.

The Court relied upon the Supreme Court's decision in G. Mohandas in this regard.

The High Court also upheld the demolition direction issued by the courts below. It held that demolition under Section 584 of the KMC Act was a consequential remedial measure following the conviction and did not require a separate substantive charge.

The Court declined to reduce the sentence to a mere fine, observing that allowing unauthorised construction to be dealt with only by imposing a monetary penalty could effectively permit wrongdoers to “buy their way out” of criminal culpability.

Accordingly, the High Court dismissed the revision petition and affirmed the conviction, two-year simple imprisonment, ₹50,000 fine and demolition direction.

The Municipal Commissioner was directed to act in accordance with the demolition order after expiry of the statutory period for appeal.

Case: ARCHANA AGARWAL -VS- STATE OF WEST BENGAL & ANR.

Case No: CRR 3796 OF 2022

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