Roof-repair permit cannot shield total demolition and unauthorised rebuilding; Calcutta High Court upholds 2-year jail, fine and demolition order

The petitioner owned premises at 167, Muktaram Babu Street, Kolkata.

The Kolkata Municipal Corporation granted Sanction Plan No. 21/Br-IV/2018-19 permitting only reconstruction of the roofs of the existing two-storied structure.

During inspection, municipal officials found that the original structure had been demolished and replaced with a new RCC framework comprising columns and tie beams, allegedly without structural-stability certification, soil testing, or supervision by the Licensed Building Surveyor or Empanelled Structural Engineer.

A prosecution was initiated under Section 401A of the Kolkata Municipal Corporation Act, 1980, and a charge sheet was filed.

The Trial Court convicted the petitioner, sentenced her to two years’ simple imprisonment and a fine of Rs. 50,000, and directed demolition of the unlawful construction under Sections 583 and 584 of the KMC Act read with Section 452 of the Cr.P.C.

The First Appellate Court affirmed the conviction and sentence while modifying the demolition directions to ensure compliance with statutory and procedural safeguards.

In revision, the petitioner challenged the evidentiary basis of the conviction, the alleged shifting of the burden of proof, the demolition order, the proportionality of the sentence, and the effect of a subsequent regularization/compounding process under Section 621(2) of the KMC Act.

Whether a sanction limited to “reconstruction of roofs only” authorized the complete demolition of the existing structure and construction of a new multi-storied RCC framework.

Whether the prosecution established the statutory ingredients of an offence under Section 401A of the KMC Act, including the existence of a public-safety or civic-infrastructure hazard, without producing laboratory reports, soil tests, or material-strength assessments.

Whether subsequent regularization applications, payment of compounding fees, or an administrative regularization order under Section 621(2) of the KMC Act could extinguish or invalidate the criminal conviction and sentence.

Whether the demolition order under Section 584 of the KMC Act read with Section 452 of the Cr.P.C. was procedurally invalid because no separate charge for demolition had been framed, and whether the sentence and demolition direction were disproportionate.

The Court applied Section 401A of the Kolkata Municipal Corporation Act, 1980, which penalizes construction undertaken in contravention of the Act or applicable rules where it creates danger to human life, safety, or public utilities.

Sections 583 and 584 of the KMC Act, read with Section 452 of the Cr.P.C., were treated as authorizing consequential dismantling or demolition of an unlawful structure following conviction.

Section 621(2) was construed as providing an administrative compounding or regularization mechanism that does not retrospectively extinguish criminal liability for an offence already committed.

The Court also applied the limited scope of revisional jurisdiction under Sections 397 and 401 of the Cr.P.C., under which concurrent factual findings are not ordinarily re-appreciated absent perversity, manifest illegality, or gross misreading of evidence.

Relying on Dipak Kumar Mukherjee v. Kolkata Municipal Corporation, (2013) 5 SCC 336, Friends Colony Development Committee v. State of Orissa, (2004) 8 SCC 733, Shanti Sports Club v. Union of India, (2009) 15 SCC 705, and G. Mohandas v. State of Kerala, 2025 SCC OnLine SC 1434, the Court emphasized that unauthorized and hazardous construction cannot ordinarily be condoned or retrospectively legalized so as to defeat criminal accountability.

The Court found a clear and fundamental variance between the sanctioned work and the construction actually undertaken: the permission covered only roof reconstruction, whereas the evidence of municipal engineers, the Licensed Building Surveyor, the Empanelled Structural Engineer, and local residents established wholesale demolition and erection of a new RCC structural framework.

It held that the petitioner could not characterize such a transformation as an incidental engineering necessity connected with roof reconstruction.

The prosecution’s ocular, documentary, and technical evidence sufficiently established unauthorized construction and the inherent risk posed by an un-engineered structure in a congested urban lane; a laboratory report, soil test, or material-strength assessment was not treated as a mandatory condition where the deviation and hazard were established through credible expert and municipal testimony.

The Court further held that later regularization or compounding operated only in the administrative sphere and could not retrospectively erase the completed criminal offence.

The demolition direction was characterized as a consequential remedial measure rather than a separate substantive offence requiring an independent charge.

Finding no perversity or manifest illegality in the concurrent findings, the Court also considered the two-year imprisonment, fine, and demolition direction justified by the deliberate and hazardous nature of the unauthorized construction.

The Court held that a roof-reconstruction sanction could not authorize demolition of the existing building and construction of a new, un-engineered RCC structure; the prosecution had proved the offence under Section 401A of the KMC Act; and subsequent regularization or compounding could not nullify the conviction or sentence.

The conviction and sentence of two years’ simple imprisonment and a fine of Rs. 50,000 were affirmed.

The consequential demolition order was also sustained, subject to compliance with statutory safeguards and expiry of the applicable appellate period.

The petitioner’s later prayer for stay was heard and rejected.