Roof-Repair Permit Cannot Shield Total Demolition and Unauthorized Construction, Calcutta HC Holds

Dismissing a criminal revision, the Calcutta High Court upheld conviction under Section 401A of the KMC Act and ruled that post-conviction regularisation cannot erase criminal liability already established.

Justice Uday Kumar, sitting singly in the Criminal Revisional Jurisdiction of the High Court at Calcutta, dismissed CRR 3796 of 2022 filed by Archana Agarwal against concurrent verdicts of the Trial Court and the First Appellate Court, both of which had convicted her under Section 401A of the Kolkata Municipal Corporation Act, 1980 (KMC Act). The judgment, pronounced on 10 September 2026, affirms a sentence of two years’ simple imprisonment and a fine of Rs. 50,000/-, alongside a demolition order directed at an unauthorised multi-storied concrete structure raised at Premises No. 167, Muktaram Babu Street, Kolkata. The Court answered four core legal questions—covering the scope of a municipal roof-repair permit, evidentiary standards under Section 401A, the effect of post-conviction regularisation, and the propriety of demolition orders issued upon conviction without a separate charge.

The Construction at 167, Muktaram Babu Street

Archana Agarwal acquired Premises No. 167, Muktaram Babu Street, Ward No. 25, Borough No. IV, Kolkata on 15 December 2014, and had her name mutated in the assessment records of the Kolkata Municipal Corporation (KMC). On 19 December 2018, she obtained Sanction Plan No. 21/Br-IV/2018-19 from KMC. That sanction was expressly limited to the “reconstruction of roofs only” of an existing two-storied structure, to be carried out under the oversight of a Licensed Building Surveyor (LBS) and an Empanelled Structural Engineer (ESE).

On 16 April 2019, Assistant Engineer (Building) of Borough No. IV, Gopal Kumar Paul (PW-1), conducted a spot inspection. He found that the entire original building had been demolished down to its base. In place of the sanctioned roof repairs, a fresh structural framework of heavy reinforced cement concrete (RCC) columns and tie beams was being raised—without structural stability certificates, soil testing, or any LBS or ESE supervision. Recognising the threat this posed to the dense lane, including its drainage, sewerage, water supply, and emergency fire access, PW-1 lodged a written complaint at Girish Park Police Station on 2 May 2019, triggering Girish Park P.S. Case No. 45 of 2019.

After investigation, Charge Sheet No. 28/2020 was submitted on 30 November 2020 against the petitioner under Section 401A of the KMC Act. The case was tried before the Learned Municipal Magistrate, 2nd Court, Kolkata. The prosecution examined eight witnesses—municipal engineers, the LBS, local residents, and the investigating officer—and exhibited fifteen documents, including the sanction plan, case reports, stop-notice service returns, and inspection books. The petitioner, when examined under Section 313 of the Code of Criminal Procedure, denied the charges and led no defence evidence.

The Trial Court, by judgment dated 24 June 2022, convicted the petitioner under Section 401A of the KMC Act, sentencing her to two years’ simple imprisonment and a fine of Rs. 50,000/- with a default clause. It also invoked Sections 583 and 584 of the KMC Act read with Section 452 Cr.P.C. to direct physical demolition through the Municipal Commissioner. The petitioner appealed under Section 374(3) Cr.P.C. (Criminal Appeal/GR Case No. 42 of 2020), raising thirty-four grounds. The First Appellate Court, by judgment dated 19 September 2022, upheld the conviction and sentence while refining the demolition directive to align with the KMC Act, Building Rules, and High Court procedural safeguards.

Arguments Before the Revisional Court

Senior Advocate Mr. Mainak Bose, appearing for the petitioner, argued that the concurrent judgments were vitiated by gross perversity and a fundamental misreading of evidence. He contended that the petitioner held a valid subsisting sanction plan, and that erecting RCC columns and tie beams during reconstruction of a multi-storied building is an engineering necessity that cannot be criminalised as unauthorised construction.

He further submitted that conviction under Section 401A requires independent proof that the construction endangered human life or disrupted public utilities, and that no scientific audit, material strength report, soil test, or expert structural evaluation was placed on record. He pointed to admissions by PW-1 that no specific measurements were recorded in the initial case report, and by PW-5 (LBS) that she had no documentation proving work exceeded the sanctioned framework.

Mr. Bose also urged that the courts below improperly shifted the evidentiary burden to the defence, and that invoking Section 584 of the KMC Act for demolition in the final judgment was procedurally flawed because no demolition charge had been framed at trial. On proportionality, he argued that two years’ imprisonment coupled with total demolition was shockingly excessive for what he characterised as minor procedural variations, and that compounding provisions under municipal law ought to have been applied. He placed reliance on Section 621(2) of the KMC Act and two decisions of the Calcutta High Court—Shyam Sundar Singh v. State of West Bengal (C.R.R. 2034 of 2018, decided 8 April 2024) and Sri Sachindranath Biswas v. State of West Bengal (C.R.R. 2033 of 2018, decided 29 March 2022)—to contend that subsequent regularisation and payment of compounding fees extinguish further penal proceedings. The petitioner had also filed a supplementary affidavit placing on record a regularisation order of the Special Officer (Building), KMC dated 5 July 2024.

Advocate Ms. Puja Goswami, appearing for the State and KMC, defended the concurrent findings. She submitted that both courts had evaluated eight witnesses and fifteen exhibits and that without patent perversity this Revisional Court should not re-weigh factual findings. She contended that the sanction was strictly for roof reconstruction of an existing structure; the petitioner instead demolished the load-bearing walls entirely and raised a new un-engineered skeleton—a fact corroborated by PW-5, who formally withdrew her supervision upon discovering the demolition. On regularisation, Ms. Goswami relied on the Supreme Court’s decision in G. Mohandas v. State of Kerala & Ors. [2025 SCC OnLine SC 1434] to argue that subsequent administrative regularisation cannot nullify an already established criminal conviction.

Four Core Questions and the Court’s Reasoning

Whether the roof-repair sanction could legally shield total demolition. The Court held it could not. The sanction expressly covered “reconstruction of roofs only” of an existing two-storied structure. The spot inspections of PW-1 and Sub-Assistant Engineer Dilwar Hossain (PW-6), corroborated by the withdrawal of LBS Chhandita Mitra (PW-5) and the expert testimony of Empanelled Structural Engineer Rupak Kumar Banerjee (PW-8), established a complete demolition of the original load-bearing structure and the erection of fresh RCC columns and tie beams. The testimonies of local residents PW-2 and PW-3 independently confirmed this. Justice Uday Kumar held that reconstructing a roof within an existing structural envelope is legally and structurally distinct from razing an entire building and casting a new framework; the petitioner’s plea that RCC columns are an engineering necessity was “factually and structurally untenable.”

The Court drew on Dipak Kumar Mukherjee v. Kolkata Municipal Corporation [(2013) 5 SCC 336], where the Supreme Court held that unauthorised buildings destroy planned development and place unbearable burden on public amenities, making demolition and adequate penalty imperative. It also referenced Friends Colony Development Committee v. State of Orissa & Ors. [(2004) 8 SCC 733] and Shanti Sports Club & Anr. v. Union of India [(2009) 15 SCC 705] for the proposition that unauthorised construction cannot be condoned or regularised lightly.

Whether the prosecution established public safety hazard without scientific reports. The Court rejected the argument that a laboratory material-strength report or soil test was a mandatory evidentiary requirement under Section 401A. Section 401A targets unauthorised construction that creates hazards to human life, safety, or public utilities such as drainage, sewerage, water supply, and emergency fire access. The Court found that the collective oral, documentary, and expert evidence of eight witnesses and fifteen exhibits comprehensively discharged the prosecution’s burden. The un-engineered substitution of the entire structural framework in a congested heritage lane inherently established the risk of structural collapse and blockage of civic infrastructure. Where ocular and technical testimonies of municipal experts demonstrate an overt and dangerous deviation, specialised scientific audits are not a mandatory prerequisite.

Whether post-conviction regularisation extinguishes criminal liability. The Court answered this firmly in the negative, applying G. Mohandas (supra). The judgment delineated a clear separation between the administrative and revenue sphere in which Section 621(2) of the KMC Act operates and the criminal sphere addressed by Section 401A. Administrative compounding bars further departmental or municipal proceedings for the compounded infraction, but it cannot retroactively erase a validly recorded criminal conviction. Permitting post-facto regularisation to operate as a retroactive amnesty would, the Court held, defeat the deterrent objective of criminal jurisprudence and reward the strategic abuse of minor municipal permits. The regularisation order of 5 July 2024 placed before the Court by supplementary affidavit therefore provided no basis for interference.

Whether demolition under Section 584 required a separate charge, and whether the sentence was proportionate. The Court held that demolition under Section 584 of the KMC Act read with Section 452 Cr.P.C. is a statutory consequential remedial mandate that attaches automatically upon conviction for an unauthorised building offence. It is not a distinct substantive penal charge requiring separate framing at the start of trial. On burden of proof, the Court found that once the prosecution established a prima facie case through unimpeached evidence, the evidentiary onus lawfully shifted to the defence under general principles of evidence; the petitioner discharged nothing beyond a bare denial under Section 313 Cr.P.C.

On proportionality, the Court declined to reduce the sentence to a monetary fine alone. It held that where a violator engages in calculated subversion of municipal safety laws—weaponising a restricted roof-repair permit to completely raze an existing structure and erect an un-engineered multi-storied skeleton in a congested heritage lane—commuting imprisonment to a fine would allow wrongdoers to “buy their way out” of criminal culpability. The sentence of two years’ simple imprisonment and a fine of Rs. 50,000/- does not suffer from disproportionate excess or legal perversity.

Five Definitive Conclusions

Justice Uday Kumar set out five numbered conclusions from his analysis:

1. A restricted municipal permit for “reconstruction of roofs only” cannot, under any principle of law, equity, or engineering, authorise the complete demolition of an existing load-bearing structure and the erection of an un-engineered multi-storied concrete framework.
2. The prosecution is not legally required to produce laboratory material-strength reports or soil tests where consistent ocular, documentary, and expert testimonies of municipal engineers establish an overt and dangerous public safety hazard under Section 401A of the KMC Act.
3. Subsequent administrative regularisation or payment of compounding fees under Section 621(2) of the KMC Act cannot retroactively erase or nullify a validly recorded criminal conviction and sentence.
4. Consequential remedial demolition orders under Section 584 of the KMC Act read with Section 452 Cr.P.C. are valid statutory mandates attaching automatically upon conviction; they do not require a separate substantive charge to be framed at the inception of trial.
5. In cases of calculated hazardous unauthorised construction, substantive penal imprisonment coupled with remedial demolition is essential to uphold urban discipline and collective safety.

Outcome

The criminal revisional application CRR 3796 of 2022 was dismissed. The concurrent judgments of conviction and sentence under Section 401A of the Kolkata Municipal Corporation Act, 1980, passed by the Trial Court and affirmed by the First Appellate Court, were affirmed. The Municipal Commissioner was directed to act strictly in adherence to procedural safeguards and only after expiry of the statutory appeal period. The interim order, if any, was vacated. No order as to costs was made. A post-judgment prayer for stay by the petitioner’s counsel was heard and rejected.