BIPLAB SAHA AND ANR. vs KOLKATA MUNICIPAL CORPORATION AND ANR.

Form J(1).
Item No.D/L.4
Court No.42

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE

Present:

THE HON’BLE JUSTICE UDAY KUMAR



CRR No.520 of 2022
WITH
CRAN/1/2022

BIPLAB SAHA AND ANR.
VS.
KOLKATA MUNICIPAL CORPORATION AND ANR.

Appearance:
For the Petitioners : Mr. Abhra Mukherjee, Adv.
Mr. Sauradeep Dutta, Adv.
Mr. Arpayan Mukherjee, Adv.
Mr. Swakshar Kr. Mondal, Adv.
Mr. Himadree Ghosh, Adv.


For the Respondent-KMC : Ms. Sreyashee Biswas, Adv.
Ms. Puja Goswami, Adv.

For the Respondent-State : Mr. Utsav Dutta, Adv.


rd
Heard on : 3 September, 2026.

rd
Delivered on : 3 September, 2026.


Judgment (Oral)

UDAY KUMAR, J.:
1. Unauthorized and unlawful construction in a congested urban
metropolis like Kolkata is not merely a civil infraction of municipal

Page 2 of 18

rules; it is a direct assault on public safety, civic infrastructure, and
the collective right of citizens to live in a safe and regulated
environment. 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
present criminal revisional application brings to the fore this very
conflict, calling upon this Court to examine the legality, propriety,
and correctness of concurrent findings of guilt returned by the Trial
Court and First Appellate Court against the petitioners for
committing an offence punishable under Section 401A of the Kolkata
Municipal Corporation Act, 1980 (hereinafter referred to as the "KMC
Act").
2. The genesis of the prosecution traces back to a written complaint
lodged on 12th February, 2017, by Sri Jayanta Paul, Assistant
Engineer (Civil), Building Department, Borough-III of the Kolkata
Municipal Corporation (KMC). The core allegation was that the
petitioners, Shri Biplab Saha (the developer and constituted attorney)
and Smt. Shukla Das (the property owner), were raising an
unauthorized four-storied (G+3) building at premises no. 26/D, Dr.
Panchanan Mitra Lane, Kolkata-700 085, in gross and flagrant
deviation from the sanctioned building plan (B.P. No. 2015030090
dated 31st March, 2016), which permitted construction strictly up to
the first floor (G+1) due to the constraints of a narrow access
passage. It was alleged that this unauthorized vertical expansion
posed an imminent threat of structural collapse, endangering human

Page 3 of 18

life and severely disrupting water supply, drainage, sewerage, and
road traffic, besides creating grave fire hazards.
3. Upon receipt of the complaint, Beliaghata Police Station Case No. 34
dated 12th February, 2017, was registered under Section 401A of the
KMC Act. Upon completion of investigation, the Investigating Officer
submitted a charge sheet against both petitioners, and a charge was
formally framed under Section 401A of the KMC Act on 5th July,
2018, to which the accused persons pleaded not guilty and claimed
to be tried. During the trial, the prosecution examined seven
witnesses, including municipal engineers, the investigating officer,
and local residents, and brought on record sixteen material exhibits,
including the sanctioned plan, stop-work notices, infringement
statements, and the original development agreement, while the
defence adduced no oral or documentary evidence.
4. By a judgment and order dated 13th March, 2019, the learned
Municipal Magistrate, 3rd Court, Calcutta, in M.F. Case No. 96 of
2017, found both petitioners guilty and sentenced them to rigorous
imprisonment for three years each and a fine of Rs. 50,000/- each,
with a default stipulation. Being aggrieved, the petitioners preferred
an appeal registered as Criminal Appeal No. 86 of 2019 before the
City Sessions Court at Calcutta, which was subsequently heard and
disposed of by the learned Additional Sessions Judge, Fast Track
Court No. 2, Bichar Bhawan, Calcutta. The learned Appellate Court,
th
by the judgment and order dated 7 February, 2022 affirmed the
conviction under Section 401A of the KMC Act but modified the

Page 4 of 18

sentence, the petitioner no. 1 (developer) was sentenced to simple
imprisonment for three months and a fine of Rs. 50,000/-, while
petitioner no. 2 (owner) was sentenced to imprisonment till the rising
of the court and a fine of Rs. 50,000/-, with default clauses intact. It
is this appellate order of affirmance that has been challenged in the
instant revisional application under Section 401 read with Section
482 of the Code of Criminal Procedure.
5. Both courts based their findings on the unrefuted oral testimonies of
municipal engineers, PW 1 (Sub-Assistant Engineer), PW 4 (Assistant
Engineer), PW 6 (LBS), and PW 7 (ESE), coupled with
contemporaneous documents such as the sanctioned plan and the
Building Rule Infringement Statement (Exhibit 8), which conclusively
established that the permissible height limit was grossly violated. The
infringement statement meticulously detailed deviations in front,
side, and rear open spaces, FAR, ground coverage, and height,
remaining entirely unrefuted during cross-examination.
Furthermore, the identity of the premises was unequivocally tied to
the petitioners through the original development agreement (Exhibit
15) and the candid admission of Smt. Shukla Das regarding her
ownership during her examination under Section 313 of the Cr.P.C.
The courts held that under Section 401A, when an unauthorized
multi-story structure (G+3) is erected in a congested lane against a
restricted G+1 sanction, the likelihood of hazard is a statutory
presumption grounded in objective physical reality, meaning actual
structural collapse or post-facto forensic proof is not a mandatory

Page 5 of 18

prerequisite once illegal vertical expansion is proved from its
inception.
6. In challenging the concurrent findings, Mr. Abhra Mukherjee,
learned counsel appearing for the petitioners submits that both
courts have committed grave errors in law and fact by failing to
appreciate that the prosecution was not initiated by the Municipal
Commissioner or any person authorized by him in compliance with
the mandatory provisions of Section 620 of the KMC Act, making the
prosecution void ab initio and defective.
7. Referring to the cross-examinations of PW 1 and PW 4, he submits
that complaint was lodged and processed without proper prior
approval of the Municipal Commissioner or the person authorised by
him. He further contends that the initial FIR dated 30th October,
2016, was never acted upon, rendering the subsequent FIR dated
12th February, 2017, legally defective. Mr. Mukherjee argues that the
prosecution failed to establish the foundational ingredients of Section
401A of the KMC Act, as official witnesses failed to bring on record
legally admissible evidence proving actual danger to human life or
public infrastructure. Furthermore, he urges that stop-work notices
under Section 401 of the KMC Act were not properly served upon the
owner or possessor in accordance with law, having been allegedly
served upon a mason without specific names, and that the absence
of a valid stop-work notice renders the proceeding void ab initio .
In addition to that learned counsel refers the non-examination of the
8.
Ward Councillor who raised the initial grievance, the lack of seizure

Page 6 of 18

of building materials from the road, the absence of soil tests or
structural stability audits, and the refusal by the courts below to
grant the benefit of Section 360 of the Cr.P.C. or the Probation of
Offenders Act as additional grounds of challenge. In support of these
contentions, Mr. Mukherjee placed his heavy reliance on the decision
passed in Mahendra Baid v. State of West Bengal & Anr (2025 SCC
OnLine Cal 3666).
9. Per contra, Ms. Puja Goswami learned counsel appearing for the
Kolkata Municipal Corporation vehemently supports the concurrent
findings of guilt recorded by the both courts, and submits that the
unauthorized vertical expansion from a sanctioned G+1 plan to a
G+3 structure in a congested lane stands conclusively proved
through unrefuted municipal records, the Building Rule Infringement
Statement (Exhibit 8), and the development agreement (Exhibit 15)
executed between the petitioners.
10. Ms. Goswami further submits that once unauthorized construction
from its inception is established by the oral and documentary
evidences, strict independent forensic proof of actual danger is not a
mandatory prerequisite, as the statutory threshold under Section
401A encompasses potential hazards inherent to unverified high-rise
expansions.
Points for Determination

11. Upon giving anxious consideration to the submissions advanced by
the contesting parties, perusing the revisional application, and

Page 7 of 18

meticulously examining the judgments and lower court records, the
controversy crystallizes into three core questions for determination:
i. whether the prosecution was vitiated at its inception due to
non-compliance with Section 620 of the KMC Act or lack of
proper service of stop-work notices;
ii. whether the prosecution successfully established beyond
reasonable doubt that the petitioners executed unauthorized
construction so as to attract the penal consequences under
Section 401A of the Act; and
iii. whether the concurrent findings of guilt and modified
sentences suffer from any patent illegality or perversity
warranting interference in revisional jurisdiction.
12. Addressing the first question concerning the initiation of
prosecution and statutory authorization under Section 620 of the
KMC Act, along with the lack of proper service of stop-work notices,
it is apposite to note that while institutional initiation requires
administrative channelization, technical arguments concerning
internal file movements or initial authorization cannot override or
vitiate a prosecution that has successfully traversed through a full-
fledged trial where substantive guilt is established beyond
reasonable doubt.
13. Indubitably, the prosecution stems from a written complaint lodged
on 12th February, 2017, by Sri Jayanta Paul, Assistant Engineer
(Civil), Building Department, Borough-III of the Kolkata Municipal
Corporation (KMC). The core allegation pertained to an

Page 8 of 18

unauthorized four-storied (G+3) building raised at premises no.
26/D, Dr. Panchanan Mitra Lane, by the petitioners, Shri Biplab
Saha (developer) and Smt. Shukla Das (property owner), in flagrant
deviation from the sanctioned G+1 building plan.
14. The petitioners challenge the inception of the case under Section
620 of the KMC Act , which regulates the institution of legal
proceedings by the Corporation. The petitioners contended during
cross-examination of PW 1 (Sub-Assistant Engineer) and PW 4
(Assistant Engineer) that complaints were processed without proper
prior administrative approval from the Municipal Commissioner or
a competent authorized officer. It was further argued that stop-work
notices under Section 401 of the KMC Act were not served upon the
owner or occupier in strict compliance with the law, having been
allegedly handed to an unnamed mason at the site, thereby
rendering the entire proceeding void ab initio .
15. The foundational legal principle governing procedural infractions at
the inception of a criminal case is whether a technical defect in
administrative channelization or pre-trial notice survives a full-
fledged trial where substantive guilt is established beyond
reasonable doubt. Procedural norms regulating institutional
sanction or internal file routing are directory in character when
viewed post-trial, unless a mandatory statutory embargo creates an
incurable nullity or causes grave, irremediable prejudice to the
defence.

Page 9 of 18


16. The defence has sought immense sustenance from the ruling in
Mahendra Baid (Supra) . However, that decision dealt with a
petition for quashing proceedings at the threshold under Section
482 of the Cr.P.C. concerning a minor internal modification (a
partition brick wall) where foundational procedural safeguards
under Section 620 were found wanting. The ratio of Mahendra
Baid (supra) is clearly distinguishable from a matter that has
proceeded through a full-fledged trial involving seven prosecution
witnesses and sixteen exhibits, culminating in concurrent findings
of guilt by two lower courts based on substantive, unrefuted
evidence of a massive unauthorized G+3 high-rise construction.
Procedural technicalities at the threshold do not survive a
completed trial where foundational guilt is thoroughly proved by
robust ocular and documentary proof adduced during trial.
17. Upon a meticulous evaluation of the statutory provisions, the
evidence on record, and the competing submissions restricted to
this aspect, I arrive at the definitive legal finding that the
prosecution was not vitiated at its inception , and the technical
objections concerning Section 620 of the KMC Act and the service of
stop-work notices are legally unsustainable. The administrative
steps taken by the municipal engineering department sufficiently
met the threshold for setting the criminal machinery in motion, and
any minor procedural imperfection stood fully cured by the
substantive evidence adduced during trial. The ratio of Mahendra
Baid has no application to a matter involving a massive, flagrant

Page 10 of 18

unauthorized vertical expansion that has undergone a complete
trial. Accordingly, the first question for determination is answered
in the negative, holding that the initiation of the prosecution and
the subsequent proceedings suffered from no fatal illegality capable
of rendering them void ab initio .
18. The second question that arises for determination in this revisional
application is whether the prosecution successfully established
beyond reasonable doubt that the petitioners executed
unauthorized construction so as to attract the penal consequences
mandated under Section 401A of the KMC Act of 1980. It is
necessary to examine the statutory command, the evidentiary
material brought on record, and the legal principles governing the
presumption of hazard in municipal infractions.
19. The core charge against the petitioners, Shri Biplab Saha
(developer) and Smt. Shukla Das (property owner), was anchored in
the erection of an unauthorized four-storied (G+3) building at
premises no. 26/D, Dr. Panchanan Mitra Lane, in blatant violation
of the sanctioned building plan (B.P. No. 2015030090 dated 31st
March, 2016), which permitted construction strictly up to the first
floor (G+1) due to the severe spatial and width constraints of a
narrow access passage.
20. To properly evaluate the charge, this court must look closely at the
exact statutory language of Section 401A(1) of the KMC Act, which
provides:

Page 11 of 18

“ 401A. Construction of building in contravention of the
provisions of the Act or the rules made thereunder .—(1)
Notwithstanding anything contained in this Act or the rules
made thereunder or in any other law for the time being in force,
any person who being responsible by himself or by other person
on his behalf, so constructs or attempts to so construct or
conspires to so construct any new building or additional floor or
floors of any building in contravention of the provisions of this
Act, or the rules made thereunder as endangers or is likely to
endanger human life, or any property of the Corporation
whereupon the water-supply, drainage or sewerage or the road
traffic is disrupted or is likely to be disrupted or is likely to
cause a fire hazard, shall be punishable with imprisonment of
either description for a term which may extend to five years and
also with fine which may extend to fifty thousand rupees.

Explanation.—"Person" shall include an owner, occupier,
lessee, mortgagee, consultant, promoter or financier, or a
servant or agent of an owner, occupier, lessee, mortgagee,
consultant, promoter or financier, who supervises or causes the
construction of any new building or additional floor or floors of
any building as aforesaid.”

21. The petitioners have strenuously argued that the prosecution failed to
bring on record any direct, independent forensic proof such as soil
tests, structural stability audits, and external expert reports to
demonstrate that the subject premises actually endangered human life
or public infrastructure. He contended that the absence of such
scientific verification, coupled with the non-examination of the local
Councillor and the lack of seized building materials from the road,
creates a fatal vacuum in the prosecution case.

Page 12 of 18


22. However, both the Trial Court and the First Appellate Court correctly
held that under Section 401A, when an unauthorized multi-storey
structure (G+3) is erected in a congested lane against a restricted G+1
sanction, the likelihood of hazard is a statutory presumption grounded
in objective physical reality. The text of the statute uses the disjunctive
expression "endangers or is likely to endanger," meaning actual
structural collapse or post-facto forensic proof is not a mandatory
prerequisite once illegal, unmonitored vertical expansion is proved from
its inception.
23. To test these assertions against the evidence on record, I have
independently examined the testimonies of the municipal engineering
officials, namely PW-1 (Sub-Assistant Engineer), PW-4 (Assistant
Engineer), PW-6 (LBS), and PW-7 (ESE), alongside contemporaneous
documentary exhibits. The record indisputably reveals that the
sanctioned building plan (Exhibit 2) permitted construction strictly up
to the first floor (G+1) due to the severe spatial and width constraints of
a narrow access passage at premises no. 26/D, Dr. Panchanan Mitra
Lane. In blatant defiance of this restriction, the petitioners proceeded to
erect an unauthorized four-storied (G+3) structure, bringing them
squarely within the mischief of Section 401A.
24. The oral testimonies of municipal engineers, e.g., PW 1 (Sub-Assistant
Engineer), PW 4 (Assistant Engineer), PW 6 (LBS), and PW 7 (ESE),
coupled with contemporaneous documents such as the sanctioned plan
(Exhibit 2) and the Building Rule Infringement Statement (Exhibit 8),

Page 13 of 18

conclusively established that the permissible height limit of 6.7 meters
was grossly violated.
25. This illegal expansion was meticulously documented in the Building
Rule Infringement Statement which detailed gross, unrefuted
violation/deviations in front, side, and rear open spaces, FAR, ground
coverage, and height limits exceeding the permissible 6.7 meters ,
remain entirely unrefuted during cross-examination. Furthermore, the
identity of the premises was unequivocally tied to the petitioners
through the original development agreement (Exhibit 15) and the
candid admission of Smt. Shukla Das regarding her ownership during
her examination under Section 313 of the Cr.P.C.
Addressing the legal threshold under Section 401A, the text of the
26.
statute deploys the disjunctive expression "endangers or is likely to
endanger". The legal ratio governing this provision dictates that when
an unauthorized multi-storey structure (G+3) is illegally raised 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. Post-facto structural forensic audits or soil test
reports are not mandatory prerequisites once the physical existence
and illegal inception of an unmonitored high-rise expansion are
conclusively proved through municipal records and ocular testimony.
The physical reality of a towering illegal structure standing in a
congested lane inherently creates the hazards contemplated by the
legislature.

Page 14 of 18


27. Upon an independent evaluation of the facts, statutory framework,
and evidence, I arrive at the definitive legal finding that the
prosecution successfully established the foundational and core
ingredients of the offense under Section 401A of the KMC Act
beyond a shadow of doubt . The technical objections raised by the
defense regarding the absence of external forensic audits or soil
testing are legally misdirected and fail to displace the overwhelming
weight of unrefuted ocular and documentary evidence. Accordingly,
the second question is answered in the affirmative, holding that the
unauthorized construction and its inherent hazards were fully
proved.
28. Addressing the third and final question that arises for determination
in this revisional application is whether the concurrent findings of
guilt returned by the two courts below suffer from any patent
illegality, perversity, or misreading of evidence warranting
interference in revisional jurisdiction, and whether the modified
sentences imposed upon the petitioners call for any further leniency
or modification. To properly address this aspect, it is necessary to
examine the precise contours of this Court's revisional power under
Section 401 read with Section 482 of the Code of Criminal Procedure,
alongside the sentencing principles applied by the appellate court.
29. It is a well-settled principle of criminal jurisprudence that revisional
jurisdiction against concurrent findings of fact under Section 401
read with Section 482 of the Code of Criminal Procedure is extremely
limited and not akin to a second appeal. This Court does not

Page 15 of 18

routinely re-appreciate or re-weigh evidence unless there is a glaring
defect, a patent perversity, or a gross miscarriage of justice resulting
from a total misreading of the evidence on record.
30. In the present case, a meticulous scrutiny of the judgments rendered
by both the Trial Court and the First Appellate Court reveals that
both courts evaluated the oral testimonies of the municipal
engineering officials, the unrefuted Building Rule Infringement
Statement (Exhibit 8), the sanctioned plan (Exhibit 2), and the
development agreement (Exhibit 15) with utmost care. The defence
failed to adduce any oral or documentary evidence to dislodge this
mountain of incriminating material. Consequently, the concurrent
findings of guilt recorded by the courts below are firmly rooted in
evidence and suffer from no perversity or illegality.
31. On the question of sentencing, the Trial Court had initially imposed a
harsh sentence of three years of rigorous imprisonment along with a
fine of Rs. 50,000/- each to both of the petitioners, treating a
municipal infraction with excessive severity whey they were held
guilty under Section 401A of the Kolkata Municipal Corporation Act,
1980 (KMC Act).
32. However, the First Appellate Court correctly rectified this imbalance
by applying landmark Supreme Court sentencing jurisprudence
(Soman v. State of Kerala , (2013) 11 SCC 382 and Alister
Anthony Pereira v. State of Maharashtra, [ (2012) 2 SCC 648 ],
which mandates that punishment must be proportionate, balancing
deterrence and correction. The appellate court rightly bifurcated

Page 16 of 18

culpability: recognizing that commercial developers who flout
building laws for profit must face strict deterrence, it maintained the
fine of Rs. 50,000/- while reducing the substantive sentence of
petitioner no.1 (Biplab Saha) to three months simple imprisonment;
and, showing humane consideration toward petitioner no.2 (Smt.
Shukla Das) on account of her age and status as a passive owner,
reduced her sentence of imprisonment till the rising of the court.
33. Upon an exhaustive scrutiny of the record, the statutory framework,
and the concurrent judgments rendered below, I find no patent
illegality, perversity, jurisdictional error, or gross miscarriage of
justice warranting interference in this revisional jurisdiction.
The prosecution successfully brought home the charge under Section
401A of the KMC Act beyond a shadow of doubt, and the appellate
court exercised sound judicial discretion in tempering the
substantive sentences to match the true proportionality of the
offense. Accordingly, the third question for determination is
answered in the negative as to any requirement for interference or
further leniency, confirming that the impugned orders call for no
disturbance whatsoever.
34. In view of the aforesaid discussions, this court arrive at definitive
conclusions, as are set out below:
First , on the interpretation and application of Section 620 of the
Act of 1980, the legal position is settled that while institutional
initiation of criminal complaints requires proper administrative
channelization, technical arguments concerning internal file

Page 17 of 18

movements or initial authorization cannot override or vitiate a
prosecution that has successfully traversed through a full-fledged,
exhaustive trial where substantive guilt is established beyond
reasonable doubt. Procedural technicalities at the threshold stand
cured by robust ocular and documentary proof adduced during
trial, and summary precedents dealing with pre-trial quashing of
minor internal alterations (such as Mahendra Baid ) do not apply to
large-scale, flagrant unauthorized vertical expansions.
Second , regarding the statutory threshold under Section 401A of
the KMC Act, the deployment of the disjunctive expression
"endangers or is likely to endanger" establishes that actual post-
facto forensic proof, structural stability audits, or soil testing are
not mandatory prerequisites for a conviction. When an
unauthorized multi-storey structure (G+3) is erected in a congested
urban access lane in blatant violation of a restricted (G+1)
sanctioned plan, the likelihood of a public hazard is a direct
statutory presumption grounded in objective physical reality.
Third , concerning the exercise of revisional jurisdiction under
Section 401 read with Section 482 of the Code of Criminal
Procedure, this Court cannot interfere with concurrent findings of
fact rendered by two lower courts unless there is a glaring defect,
perversity, or gross misreading of evidence. Where the foundational
ingredients of an offense are established through unrefuted
municipal records and expert testimonies, and where the appellate

Page 18 of 18

court has correctly applied Supreme Court sentencing
jurisprudence to balance deterrence and proportionality,
bifurcating the culpability of a commercial developer from a passive
owner, the concurrent findings and modified sentences remain
entirely unimpeachable in law.
Accordingly, the criminal revisional application, being C.R.R. 520 of
35.
2022, is found to be devoid of merit and stands dismissed.
36. There shall be no order as to costs.
37. Interim orders, if any, stand vacated.
38. All parties shall act on the server copy of this order duly downloaded
from the official website of the Calcutta High Court.


(UDAY KUMAR, J.)

Saikat
Mukherjee (AR.CT.)