Illegal G+3 construction in a narrow Kolkata lane can attract criminal conviction without a structural audit, Calcutta High Court rules

The petitioners, Biplab Saha, the developer and constituted attorney, and Shukla Das, the property owner, were prosecuted under Section 401A of the Kolkata Municipal Corporation Act, 1980 (“KMC Act”) for allegedly constructing a G+3 building at premises no. 26/D, Dr. Panchanan Mitra Lane, Kolkata, contrary to a sanctioned plan permitting construction only up to G+1 because of the narrow access passage.

Following a complaint by an Assistant Engineer of the Kolkata Municipal Corporation, an FIR was registered, a charge-sheet was filed, and charges under Section 401A were framed.

The Municipal Magistrate convicted both petitioners and sentenced each to three years’ rigorous imprisonment and a fine of ₹50,000.

On appeal, the conviction was affirmed, but the sentence of petitioner no. 1 was reduced to three months’ simple imprisonment and the sentence of petitioner no. 2 to imprisonment till the rising of the court; the fines were maintained.

The prosecution relied principally on municipal engineers’ testimony, the sanctioned building plan, the Building Rule Infringement Statement, and the development agreement linking the petitioners to the premises.

Whether the prosecution was vitiated at its inception by non-compliance with Section 620 of the KMC Act or by improper service of stop-work notices under Section 401.

Whether the prosecution proved beyond reasonable doubt that the petitioners carried out unauthorized construction likely to endanger human life or disrupt civic infrastructure, thereby attracting Section 401A of the KMC Act.

Whether the concurrent findings of conviction and the modified sentences suffered from patent illegality, perversity, or gross miscarriage of justice warranting interference in revisional jurisdiction under Sections 401 and 482 of the CrPC.

The Court applied Section 401A(1) of the KMC Act, which criminalises construction of a new building or additional floors in contravention of the Act or rules where the construction “endangers or is likely to endanger” human life, disrupts or is likely to disrupt water supply, drainage, sewerage or road traffic, or is likely to cause a fire hazard; the statutory explanation extends liability to owners, occupiers, promoters, consultants, agents and other persons responsible for the construction.

Section 620 of the KMC Act, governing the institution of proceedings by the Corporation, was treated as subject to procedural requirements that do not invalidate a completed prosecution absent a mandatory statutory bar or irremediable prejudice.

The Court distinguished Mahendra Baid v. State of West Bengal & Anr., 2025 SCC OnLine Cal 3666, which concerned threshold quashing for procedural non-compliance in relation to a minor construction.

It further held that revisional jurisdiction under Sections 401 and 482 of the CrPC is limited and is not equivalent to a second appeal; interference with concurrent factual findings is justified only for patent illegality, perversity, glaring misappreciation of evidence, or gross miscarriage of justice.

On sentencing, the Court referred to Soman v. State of Kerala, (2013) 11 SCC 382, and Alister Anthony Pereira v. State of Maharashtra, (2012) 2 SCC 648, for the principle that punishment must balance deterrence with proportionality and correction.

The Court held that the objections regarding administrative approval under Section 620 and service of stop-work notices did not create a fatal defect after a full trial in which the prosecution had adduced substantial evidence and the accused had suffered no demonstrated irremediable prejudice.

On the merits, the sanctioned plan established that only G+1 construction was permissible, while the municipal evidence and Building Rule Infringement Statement established an unauthorised G+3 structure with deviations in height, open spaces, FAR and ground coverage.

Applying the expression “endangers or is likely to endanger” in Section 401A, the Court reasoned that proof of actual collapse or separate structural, soil or forensic testing was not indispensable where an unmonitored multi-storey structure had been erected in a congested lane in clear violation of the sanctioned plan.

The development agreement and the owner’s statement under Section 313 CrPC sufficiently connected the petitioners with the premises and construction.

Since the courts below had relied on consistent municipal testimony and documentary evidence, and their findings were neither perverse nor unsupported, the Court declined to exercise revisional interference.

It also found the appellate court’s differentiated sentences proportionate, taking into account the developer’s greater culpability and the owner’s age and comparatively passive role.

It answered the second issue in the affirmative, holding that the unauthorised G+3 construction and the likelihood of hazards contemplated by Section 401A were proved beyond reasonable doubt.

It answered the third issue against interference, finding no patent illegality, perversity, jurisdictional error or gross miscarriage of justice in the concurrent conviction or the appellate sentence.

Accordingly, CRR No. 520 of 2022 was dismissed, the conviction under Section 401A of the KMC Act and the modified sentences were affirmed, there was no order as to costs, and any interim orders were vacated.