Mere Allegation of Illegal Construction Without Clear Evidence of Who Built It Cannot Sustain Conviction: Calcutta High Court Acquits Accused in Illegal Building Case

Prosecution Must Prove Unauthorized Construction Beyond Doubt— In a significant ruling Calcutta High Court set aside the conviction of three tenants accused of unauthorized construction under Section 401A of the Kolkata Municipal Corporation Act, 1980. The Court held that the prosecution failed to establish beyond reasonable doubt that the accused were responsible for constructing the allegedly illegal building.

Overturning the decisions of the Municipal Magistrate and the Additional District & Sessions Judge, the High Court observed, "The prosecution cannot merely assume that the occupiers of a building are responsible for its construction. It must present cogent evidence proving their direct involvement in the construction process."

"A Dispute Over Unauthorized Construction Turns Into Criminal Proceedings—Was the Conviction Justified?"

The case originated from Chitpore Police Station Case No. 50 of 2016, filed on February 25, 2016, based on a complaint by an Assistant Engineer of the Kolkata Municipal Corporation (KMC), Borough – I. The complainant alleged that the accused, Md. Yunus, Md. Asif, and Md. Nousad, had constructed an unauthorized two-storied building at 14/5, B.T. Road, Kolkata, in violation of building norms, posing a danger to human life.

Following an investigation, the police filed a charge sheet under Section 401A of the KMC Act, and the case was tried before the Municipal Magistrate, 3rd Court, Calcutta. On September 23, 2016, the court found the accused guilty and sentenced them to six months of simple imprisonment and a fine of ₹5,000 each. Their appeal before the Additional District & Sessions Judge was dismissed on April 7, 2018, prompting them to file a criminal revision petition before the High Court.

"Accused Were Tenants, Not Builders—Prosecution Failed to Prove Direct Involvement in Construction"

The accused argued that they were mere tenants in premises No. 14, B.T. Road and had not undertaken any construction activities. They claimed that the landlords, in an attempt to evict them, had falsely implicated them by using the municipal authorities.

The High Court, after examining the evidence, noted that the prosecution’s key witnesses, including P.W. 1 (Abdul Kalam Azad) and P.W. 4 (Mahatab Uddin Ahmed), identified the accused as trespassers, not builders. The Court found: "The prosecution failed to establish with any documentary or credible oral evidence that the accused were the ones who built the structure. When ownership of land itself is disputed, mere occupation cannot be equated with construction activity."

The Court further noted that the complaint mentioned unauthorized construction at 14/5, B.T. Road, but the prosecution failed to prove that this address was the same as the premises occupied by the accused.

"Kolkata Municipal Corporation’s Own Report Contradicts the Prosecution’s Case"

A report from the Kolkata Municipal Corporation (KMC), submitted in W.P.A. 22957 of 2023, was placed before the High Court. This official report stated that the building in question was at least 20 years old and that no new construction was detected during an inspection. The Court found this report significant, ruling: "When an official municipal report states that no new construction has been detected and that the building is decades old, it raises serious doubts about the prosecution's claim that the accused carried out unauthorized construction."

"Legal Requirement for Prosecution to Prove Direct Participation in Construction Not Met"

The Court referred to Sections 401A and 619 of the KMC Act, which prescribe penalties for unauthorized construction but require clear proof that the accused actively built or financed the illegal structure.

Relying on State of Karnataka v. Krishnappa (2000) 4 SCC 75, the Court reaffirmed the principle that: "In criminal cases, the prosecution must establish guilt beyond reasonable doubt. Where allegations are based on assumptions rather than evidence, a conviction cannot stand."

Applying this standard, the Court ruled: "The prosecution has failed to present direct evidence showing that the accused financed, supervised, or carried out the construction in question. The mere fact that they occupy the premises is insufficient to establish guilt."

"Courts Must Be Cautious in Criminalizing Landlord-Tenant Disputes"

The High Court expressed concern that landlord-tenant disputes were increasingly being turned into criminal cases using municipal laws. The Court observed: "Eviction disputes should be resolved through civil proceedings. Using criminal law as a tool to force tenants out of disputed properties undermines the legal process and leads to wrongful convictions."

After reviewing the evidence, municipal reports, and legal precedents, the High Court ruled that the conviction was not sustainable. It held:

• The prosecution failed to prove that the accused constructed the building.

• The municipal report contradicted claims of new construction.

• The trial court wrongly assumed that occupation implied responsibility for construction.

• The prosecution did not establish guilt beyond reasonable doubt.

Setting aside the 2016 conviction and the 2018 appellate ruling, the High Court allowed the revision petition, acquitting the accused and quashing all sentences and fines.

Concluding the judgment, the Court ruled: "When the prosecution’s own evidence does not establish the accused’s involvement in construction, courts cannot convict based on conjecture. The rule of law demands clear proof before imposing criminal liability."

Date of Decision: 12/03/2025