Installation of Mobile Tower on Existing Rooftop Does Not Constitute Building Construction Under Section 401A of KMC Act

The Petitioner No. 1, a telecommunications infrastructure company, and Petitioner No. 2, its Chief Operating Officer, were accused of unauthorized erection of a mobile tower on the roof of a three-storey building in Kolkata

A complaint was lodged by the Kolkata Municipal Corporation (KMC) alleging that the installation was done without municipal sanction and posed risks to human life and civic amenities

Following an investigation, a charge-sheet was filed under Section 401A of the Kolkata Municipal Corporation Act, 1980

The Petitioners moved the High Court to quash the proceedings, arguing that a mobile tower does not constitute a "building" or "addition of floors" and thus does not trigger the penal provisions of Section 401A

The Court primarily applied Section 401A of the Kolkata Municipal Corporation Act, 1980, which penalizes unauthorized construction that endangers public safety or municipal infrastructure

It relied on the definition of "building" under Section 2(5) of the same Act, which requires a structure intended to enclose land

Regarding vicarious liability, the Court cited M.D. M/S Castrol India Limited vs State of Karnataka and Sunil Bharti Mittal v. Central Bureau of Investigation, establishing that corporate officers cannot be held vicariously liable for a company's alleged offense unless the specific statute expressly provides for such liability.

The Court also followed the principle that penal statutes must be strictly construed and not expanded through judicial interpretation

The Court reasoned that Section 401A is a penal provision and must be strictly interpreted; it target's the "erection of a building" or "addition of floors," whereas the facts showed only the assembly of a metallic tower atop an existing roof

The Court found that a mobile tower does not meet the statutory definition of a "building" under Section 2(5) as it does not enclose land

Furthermore, the Court noted that KMC's own administrative framework (Schedule of Fees for 2012-13) provides for the "regularization" of towers installed without sanction, suggesting such acts are regulatory lapses rather than criminal offenses under Section 401A

The allegations of public danger were dismissed as speculative and lacking technical or engineering evidence

Lastly, the Court determined that since the KMC Act does not contain a specific clause for vicarious liability, Petitioner No. 2 could not be prosecuted merely by virtue of his managerial designation

The High Court allowed the revisional application and quashed Case No. 181 of 2014, including the F.I.R. and the charge-sheet, to prevent an abuse of the process of law

All interim orders were dissolved and no costs were awarded