Kolkata, 08 September (H.S.) : The Calcutta High Court has upheld the conviction of a developer and a property owner for constructing an unauthorised G+3 building in a congested lane in Kolkata in violation of the sanctioned building plan.

Justice Uday Kumar held that an actual structural collapse or a subsequent structural forensic report is not necessary to establish an offence under Section 401A of the Kolkata Municipal Corporation Act. The provision covers construction that endangers, or is likely to endanger, human life or disrupt civic infrastructure.

The case concerns a property at 26/D, Dr Panchanan Mitra Lane, Kolkata. Petitioners Biplab Saha and Shukla Das had allegedly constructed a four-storeyed building despite municipal approval permitting construction only up to G+1, considering the narrow access to the premises.

The case originated from a complaint lodged by an Assistant Engineer of the Kolkata Municipal Corporation on February 12, 2017. According to the prosecution, the unauthorised construction posed a potential threat to human life and could affect water supply, drainage, sewerage and road traffic, besides creating a fire hazard.

A trial court had convicted both accused under Section 401A of the KMC Act and sentenced them to three years' rigorous imprisonment and a fine of Rs 50,000 each. The first appellate court subsequently reduced their sentences. Saha, the developer, was sentenced to three months' simple imprisonment and a fine of Rs 50,000, while Das, the property owner, was sentenced to imprisonment till the rising of the court and fined Rs 50,000.

The High Court noted that the prosecution had examined seven witnesses and produced 16 exhibits, including the sanctioned building plan, the Building Rule Infringement Statement and the original development agreement.

The court found that the evidence of municipal engineering officials, supported by documentary records, established a substantial violation of the sanctioned height of 6.7 metres. The infringement statement also recorded deviations relating to the front, side and rear open spaces, floor area ratio (FAR), ground coverage and building height.

The petitioners argued that the prosecution had failed to produce independent scientific evidence, such as soil-test reports, structural stability assessments or expert opinions, to establish that the building actually endangered human life or civic infrastructure.

Rejecting the argument, the High Court observed that Section 401A applies not only where a construction actually causes danger but also where it is “likely to endanger” human life or civic infrastructure. Therefore, an actual collapse of the structure is not a prerequisite for conviction.

The court observed that constructing a G+3 structure in a congested urban lane despite permission being restricted to G+1 was sufficient to establish the likelihood of a hazard. Once the unauthorised construction was proved through municipal records and witness testimony, a post-facto structural audit or soil-test report was not mandatory, it held.

The petitioners had also challenged the manner in which the prosecution was initiated, 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 stop-work notices had not been properly served on the owner or occupier.

The High Court rejected these objections, holding that technical issues concerning internal administrative authorisation or movement of files could not invalidate a prosecution that had already gone through a full-fledged trial and resulted in findings of guilt supported by substantial oral and documentary evidence.

The court also declined to interfere with the concurrent findings of the trial court and the appellate court. It observed that revisional jurisdiction is limited and cannot be treated as equivalent to a second appeal. No perversity, jurisdictional error or gross miscarriage of justice was found in the lower courts' conclusions.

The High Court further upheld the appellate court's approach to sentencing, which had distinguished between the culpability of the commercial developer and that of the property owner. The reduced sentence imposed on Das took into account her age and her relatively passive role as the owner.

The case is Biplab Saha and Another vs Kolkata Municipal Corporation and Another, Criminal Revision Case No. CRR 520 of 2022.

Hindusthan Samachar / Satya Prakash Singh