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2023 Supreme(Online)(Cal) 16457
IN THE HIGH COURT AT CALCUTTA
Bibhas Ranjan De, J
GKW Ltd. – Appellant
Versus
State of West Bengal – Respondent
CRR 3667 of 2016|CRR 3744 of 2016
For the Appellants/Petitioners: Ayan Bhattacherjee, Rahul Auddy, S Mondal, Aditya Goopta
For the Respondents: Goutam Dinda, Anindya Sundar Chatterjee, Firia Hossain, Anand Keshari
Section 401(A) of the KMC Act, 1980 applies only to the unauthorized construction of new buildings or additional floors; it cannot be invoked for internal repairing works permitted under Rule 3(2) of the KMC Building Rules, 2009.
Headnote:(A) Construction of Building - Internal Repairing Works - Rule 3(2) of the Kolkata Municipal Corporation Building Rules, 2009 provides that no building permit is required for specific internal works, including internal partition walls and minor repairs, provided they do not violate the Act. (Para 15, 17)
(B) Penal Provisions - Section 401(A) of the KMC Act, 1980 - Scope of Offence - The penal provision under Section 401(A) is specifically attracted only in cases of construction of a new building or additional floor(s) in contravention of the Act that endangers human life or property; it cannot be applied to internal repairing works within an existing flat. (Para 13, 18)
Issues: Whether criminal proceedings under Section 401(A) of the KMC Act, 1980 can be sustained for internal repairing works that do not involve the construction of a new building or additional floors.
Legal Category Hierarchy
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municipal law
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building regulations
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building permits
- exemptions for internal repairs
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building permits
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building regulations
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criminal law
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offences under municipal acts
- unauthorized construction
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offences under municipal acts
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practice and procedure
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criminal procedure
- quashing of proceedings
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criminal procedure
Both the revisional applications involving identical issue are being taken up for disposal by this common order.
Both the revisional applications were filed by the respective petitioners for quashing the proceeding of Bhowanipore Police Station Case No. 264 dated July 19, 2015 under Section 401(A) of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to “KMC Act”) pending before the 4th Municipal Magistrate Court, Calcutta.
Brief facts of this case is that one Assistant Engineer (C)/Bldg. Br. No. VIII of Kolkata Municipal Corporation lodged a written complaint addressed to Officer-in-Charger, Bhowanipore Police Station, alleging, inter alia, that owners/petitioners qua of both the revisional applications were making brick masonry structure in the premises in question i.e in the first floor of premises No.2 Bishop Lefroy Road, Kolkata 700020. It was further alleged that notice under section 401 of the KMC Act was served upon both the petitioners on 29.06.2015 to stop the work and all necessary steps for guarding the said premises with the assistance of police were made. It was further alleged that construction without following any norms and practicing of civil engineering may collapse at any time causing human lives.
Accordingly, the complaint was lodged suggesting for an action under Section 401(A) of the KMC Act, 1980 and also Bhowanipore Police Station Case No. 264 dated 19.07.2015 was started under Section 401(A) of the KMC Act.
During investigation one statement of Siddhartha Bhattar was recorded and submitted charge-sheet under Section 401(A) of the KMC Act against the petitioners of the revisional applications.
Mr. Ayan Bhattacherjee, learned advocate appearing on behalf of the petitioners relied on Section 401(A) of the KMC Act along with Rule 3 of the Kolkata Mumicipal Corporation Building Rules 2009 and submitted that the proceeding was started for internal repairing works undertaken by the petitioners in the First Floor of premises in question and for which no permission/sanction is required under Rule 3(2) of the KMC Building Rules 2009.
Mr. Bhattacherjee has drawn to my attention to the order of Hon’ble Single Judge in W.P No. 9410 (W) of 2016 along with the report of KMC authority in compliance with the order of the Hon’ble Single Judge in the writ petition.
Mr. Bhattacherjee also relied on the order of Hon’ble Division Bench wherein the order passed in writ petition by the Hon’ble Single Judge was set aside. However, Mr. Bhattarcherjee relied on the report submitted by KMC officials in compliance with the direction of the Hon’ble Judge in writ petition mentioned above.
It is submitted by Mr. Bhattacherjee that 401 (A) of the KMC Act has no application with the repairing works conducted by the petitioners within the flat of the premises in question.
Mr.Goutam Dinda, learned advocate appearing on behalf of the Kolkata Municipal Corporation has submitted that no construction works specially erection of partition wall cannot be permitted in any heritage building under the KMC Act. Mr. Anand Keshari, learned advocate appearing on behalf of the State produced the Case Diary.
At the very outset, I would like to reproduce the Section 401(A) of the KMC Act as quoted below:-
“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 of 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 h
