"Calcutta High Court Sets Aside Conviction in Unauthorized Construction Case: ‘Prosecution Failed to Prove Allegations Beyond Doubt’"
Kiran Raj
The Calcutta High Court, in its Criminal Revisional Jurisdiction under the Appellate Side, set aside the conviction of three petitioners accused of unauthorized construction under Section 401A of the Kolkata Municipal Corporation (KMC) Act, 1980. The judgment was delivered by a Single Bench of Justice Ajay Kumar Gupta in CRR 1783 of 2018. The court found that the prosecution failed to establish beyond reasonable doubt that the accused had undertaken the construction.
The case stemmed from a complaint lodged by Tapas Laha, Assistant Engineer (C), Building Department, Kolkata Municipal Corporation (KMC), Borough – I, alleging that the petitioners, Md. Yunus @ Md. Younus, Md. Asif, and Md. Nousad, had undertaken unauthorized construction at 14/5, B.T. Road, Kolkata – 700002. The complaint led to the registration of Chitpore Police Station Case No. 50 of 2016 on February 25, 2016, under Section 401A of the KMC Act.
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Subsequently, the Investigating Officer filed Charge Sheet No. 64/16 on April 27, 2016, bringing the case to trial before the Municipal Magistrate, 3rd Court, Calcutta. On September 23, 2016, the Magistrate convicted the petitioners, sentencing them to six months of simple imprisonment and a fine of Rs. 5,000 each, with an additional one-month imprisonment in case of default. The conviction was upheld by the Additional District & Sessions Judge, Bench – II, City Sessions Court, Bichar Bhawan, Calcutta, in Criminal Appeal No. 119 of 2016, leading to the present revisional application before the High Court.
The petitioners challenged the conviction, arguing that they were mere tenants of the premises and had not carried out any unauthorized construction. They contended that the case was an attempt by the landlords to evict them by leveraging municipal machinery. The petitioners also stated that there was no danger posed by the structure and that they had resided there for a long time.
On behalf of the KMC, it was submitted that the petitioners had constructed a two-storied building without a sanctioned plan, and despite receiving a 'Stop Work Notice,' they failed to halt construction. The State, supporting the prosecution, argued that local witnesses confirmed the petitioners' involvement in the unauthorized construction.
Justice Ajay Kumar Gupta examined the evidence presented by both parties and noted several inconsistencies in the prosecution's case. The court observed that the prosecution failed to prove that the petitioners were responsible for constructing the alleged unauthorized building at 14/5, B.T. Road. The court remarked:
"The prosecution has failed to prove that the petitioners/accused persons have constructed the building as alleged by the Assistant Civil Engineer of Building Department, Borough – I, KMC/Complainant at premises no. 14, B.T. Road, Ward No. 6, Borough – I, wherein the petitioners are residing since long either as tenants or occupiers or trespassers."
The court further referenced a report submitted in a related matter before a Coordinate Bench of the Calcutta High Court in WPA 22957 of 2023, where municipal engineers found that the structure at 14/5, B.T. Road was over 20 years old, with no recent construction.
"The premises was inspected and found construction of partly two-storied and partly single-storied RT Shed exists at the subject premises at 14/5, B.T. Road, Ward No. 6, Borough – I. The building is an old one but the actual age of the construction could not be ascertained. On local enquiry, it prima facie reveals that the building is more than twenty years old. No new construction has been found at the time of inspection."
The judgment also stated that the burden was on the prosecution to establish that the petitioners constructed the unauthorized building. The court noted that while the petitioners may have occupied the premises as tenants or trespassers, this alone was insufficient to hold them liable under Section 401A of the KMC Act.
Given the inconsistencies in the prosecution’s case and lack of concrete evidence linking the petitioners to the alleged unauthorized construction, the High Court set aside the previous convictions:
"Accordingly, the Judgment dated 07.04.2018 passed by the Learned Additional District & Sessions Judge, Bench – II, City Sessions Court, Bichar Bhawan, Calcutta in Criminal Appeal No. 119 of 2016 affirming the Judgment dated 23.09.2016 passed by the Learned Municipal Magistrate, 3rd Court, Calcutta in connection with Chitpore Police Station Case No. 50 of 2016 dated 25.02.2016 under Section 401A of the Kolkata Municipal Corporation Act, 1980 being Case No. M.F. No. 170 of 2016 is hereby set aside."
The court allowed the Criminal Revisional Application (CRR 1783 of 2018) and ordered the disposal of all connected applications.
Advocates Representing the Parties
For the Petitioners: Mr. Tarique Quasimuddein, Mrs. Zainab Tahur, Advoctes.
For the Kolkata Municipal Corporation: Mr. Goutam Dinda, Mr. Anindya Sundar Chatterjee, Advocates.
For the State: Mr. Debasish Roy, Ld. P.P., Ms. Faria Hossain, Adv.
Case Title: Md. Yunus @ Md. Younus and Others vs. The State of West Bengal and Another
Case No.: C.R.R. 1783 of 2018
Bench: Justice Ajay Kumar Gupta
[Read/Download order]
