The KMC authorities cannot have double standards before a court of law. A person cannot be sent to jail and an illegal construction is regularised, if it is at all illegal and endangering human life. A court is not an expert to come to a conclusion and express its opinion regarding the nature of construction. The authority who passed the order in its designation incorporates the word “engineer”, the finding of that authority is that there are infractions which are minor. If infractions are minor, then it cannot endanger the human life and the building or the construction can be allowed to retain its form without being demolished.
Sri Sachindranath Biswas vs The State of West Bengal & Anr.
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
C.R.R. 2033 of 2018 with CRAN 1 of 2018 (Old No. CRAN 3354 of 2018)
with CRAN 4 of 2022
Sri Sachindranath Biswas
versus
The State of West Bengal & Anr.
In Re: An Application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973.
Mr. Syed Arif Ahmed and Mr. Abhisek Tiwari … For the Petitioner.
Mr. Goutam Dinda and Mr. Anindya Sundar Chatterjee … For the KMC.
ACTS : Section 401A of the Kolkata Municipal Corporation Act, 1980
DATE: 29.03.2022
JUDGMENT
Tirthankar Ghosh, J.
The present revisional application has been preferred challenging the judgement and order dated 07.05.2018 passed by learned Additional District & Sessions Judge, 1st Fast Track Court, Calcutta in Criminal Appeal No. 55 of 2016 wherein the learned appellate court was pleased to dismiss the appeal and affirmed the order of conviction and sentence passed by learned Municipal Magistrate, 4th Court, Kolkata in case No. M/F 28 of 2015.
Records reflect that the learned Municipal Magistrate, 4th Court, Kolkata was pleased to hold the present petitioner guilty for commission of offence punishable under Section 401A of the Kolkata Municipal Corporation Act, 1980 and sentenced him to suffer simple imprisonment for six months and to pay a fine of Rs.5000/-, in default, to suffer simple imprisonment for two months. The provision of Section 401A of the KMC Act is set out as follows :
“401A. Construction of building in contravention of the provisions of the Act or the rules made thereunder. – (1) Notwithstanding anything contained in this Act or the rules made thereunder or in any other law for the time being in force, any person who being responsible by himself or by any other person on his behalf, so constructs or attempts to so construct or conspires to so construct any new building or additional floor or floors of any building in contravention of the provisions of this Act, or the rules made thereunder as endangers or is likely to endanger human life, or any property of the Corporation whereupon the water-supply, drainage or sewerage or the road traffic is disrupted or is likely to be disrupted or is likely to cause a fire hazard, shall be punishable with imprisonment of either description for a term which may extend to five years and also with fine which may extend to fifty thousand rupees.
Explanation.- “Person” shall include an owner, occupier, lesssee, mortgagee, consultant, promoter or financier, or a servant or agent of an owner, occupier, lesssee, mortgagee, consultant, promoter or financier, who supervises or causes the construction of any new building or additional floor or floors of any building as aforesaid.
(2) The offence under sub-section (1) shall be cognizable and non-bailable, within the meaning of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) Where an offence under sub-section (1) has been committed by a company, the provisions of section 619 shall apply to such company.
Explanation.- “Company” shall have the same meaning as in the Explanation to section 619.”
The crux of the section emphasises on “endangers or is likely to endanger human life, or any property of the Corporation whereupon …………….”. The present is a case where for constructing an extra floor, the prosecution was initiated. The petitioner in the present revisional application has enclosed an order dated 15.07.2016 passed by Dy.Ch.Engg.(Bldg.)/South. The said order was passed pursuant to the order of the learned trial court convicting the present petitioner. Surprisingly the said order expresses an observation/opinion of an expert for regularizing the construction which was held to be illegal, unauthorised and endangering human life by a criminal court. The opinion of the expert of the KMC authority is set out as follows :
“In my observation/Opinion – The violation of Building Rules 62, 69, 70, 74, 78, 106, 107, 109, 111, 117, 127, 133 & 134 of Building Rule 2009 are not so grave and serious and infractions of Building Rules for the same are minor in terms of the provision for regulation framed for hearing & regularisation of the case U/s. 400(1) of KMC Act, 1980, as amended on June 20, 2015.”
The KMC authorities cannot have double standards before a court of law. A person cannot be sent to jail and an illegal construction is regularised, if it is at all illegal and endangering human life. A court is not an expert to come to a conclusion and express its opinion regarding the nature of construction. The authority who passed the order in its designation incorporates the word “engineer”, the finding of that authority is that there are infractions which are minor. If infractions are minor, then it cannot endanger the human life and the building or the construction can be allowed to retain its form without being demolished.
The records of the present case are remanded to the learned trial court for fresh consideration on the issue that the learned Magistrate will ask the concerned Officer to appear and give explanation in respect of the order dated 15.07.2016.
The judgement and order of conviction and sentence passed by the learned Municipal Magistrate, 4th Court, Kolkata on 13.05.2016 is set aside. Consequently the order of the learned appellate court is set aside.
The learned trial court would independently take a decision without being influenced by any observations made by this Court after taking into account the order dated 15.07.2016 passed by the Deputy Chief Engineer (Building)/South. If required, the files of KMC authority may be produced before the court for analysing the correctness of the findings before coming to a finding of guilt or acquittal by the learned Municipal Magistrate, 4th Court, Kolkata under Section 401A of the KMC Act. The learned Magistrate will take this order dated 15.07.2016 passed by the Dy.Ch.Engg.(Bldg.)/South as an additional evidence, if required under Section 311 of the Code of Criminal Procedure, examine the designated officer or any authority of KMC to clear the doubt and difference between ‘minor’ and ‘endanger’ and thereafter pass a fresh judgement, considering the whole evidence available before him/her.
The petitioner and also the KMC authority will be present before the learned Municipal Magistrate, 4th Court, Kolkata on 26.04.2022.
With the aforesaid observations, the revisional application being CRR 2033 of 2018 is disposed of.
Interim order, if any, is hereby vacated.
All pending connected applications are consequently disposed of.
Department is directed to send back the lower court records to the jurisdictional courts within a period of seven days from date.
All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
SD/-
(Tirthankar Ghosh, J.)
DATE: 29.03.2022