Recently, the Supreme Court dismissed an appeal seeking to quash criminal proceedings against a builder who allegedly raised a four-storeyed commercial building in a prohibited zone by misusing a renovation permit granted by the Thiruvananthapuram Municipal Corporation. The Court held that the appellant acted in conspiracy with municipal officials to bypass building regulations, and observed that "from the very beginning, the appellant acted in conspiracy... giving a facade of legitimacy to his fraudulent actions."
Brief Facts:
The case arose from the construction of a commercial building by the appellant, who owned property in Thiruvananthapuram. According to the prosecution, the appellant conspired with officials of the Thiruvananthapuram Municipal Corporation and an architect to obtain a permit under the Kerala Municipality Building Rules, 1999, ostensibly for internal renovations. Instead of carrying out permitted alterations, the appellant demolished the existing structure and constructed an entirely new four-storey commercial building in a zone where such construction was prohibited.
A complaint was filed by a local businessman, leading to a vigilance inspection. Subsequently, a sanction was issued by the government for an investigation. Upon inquiry, the Vigilance Department found prima facie evidence of conspiracy between the appellant and government officials. An FIR was registered under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120B of the IPC.
The appellant later approached the High Court under Section 482 CrPC seeking quashing of the proceedings, contending that the building had collapsed due to heavy rains and that the new structure was erected thereafter. The High Court rejected the plea, and the matter reached the Supreme Court.
Contentions of the Petitioner:
Senior Counsel Shri R. Basant, appearing for the appellant, argued that the construction was carried out in a bona fide manner after the original building collapsed due to torrential rainfall. It was submitted that the appellant had sought regularisation of the structure and the Municipal Corporation had raised a demand for compounding charges, indicating willingness to legitimise the construction. Therefore, the criminality associated with the alleged infraction no longer survived.
It was further contended that the appellant stood on the same footing as the architect (Accused No. 7), against whom proceedings had already been quashed by the High Court. The appellant thus sought parity and quashing of the criminal proceedings.
Contentions of the Respondent:
On the other hand, the Counsel for the State, strongly opposed the appeal. He submitted that the entire sequence of events was a calculated design to give legal cover to an otherwise illegal construction. The building was constructed even after a stop memo was issued by the Vigilance Department. Moreover, the application for regularisation was filed only after the fraud had been exposed.
It was argued that the case of the architect stood on a different footing as he was merely performing his professional duties and had no role in the conspiracy. The appeal, therefore, lacked merit and deserved dismissal.
Observations of the Court:
The Supreme Court examined the material on record and upheld the findings of the High Court. It noted that the Kerala Municipality Building Rules did not require any permission for internal alterations or renovations. However, the appellant, in collusion with municipal officials, obtained a permit for such renovation, not as a necessity, but as a ruse to undertake unauthorised construction in a prohibited zone.
The Court remarked, “From the very beginning, the appellant acted in conspiracy with the Municipal Corporation officials by giving a facade of legitimacy to his fraudulent actions and to establish a pre-emptive defence in case the illegal acts were exposed.”
Further, it observed that even after issuance of the stop memo, the appellant continued with the construction, and later attempted to legalise the act by seeking regularisation, which itself was impermissible in a prohibited zone.
Regarding the comparison with the architect, the Court clarified, “The case of the architect... stands on an entirely different footing. He was merely discharging his professional obligations... without any active involvement in the alleged conspiracy or the execution of the illegal construction.”
The Court concluded that the appellant could not claim parity with the architect and any such reliance was wholly misplaced.
The decision of the Court:
In conclusion, the Top Court held that the order passed by the Kerala High Court rejecting the plea for quashing did not suffer from any infirmity. It refused to interfere under Article 136 of the Constitution and dismissed the appeal, observing, “The present appeal fails and is being dismissed as being devoid of merit.” The Court also directed that the authorities must proceed against the illegal construction uninfluenced by extraneous considerations.
Case Title: G. Mohandas Vs. State of Kerala & ors.
Case No.: SLP (Crl.) No (s). 1694 of 2024
Coram: Justice Vikram Nath, Justice Sandeep Mehta
Advocate for Petitioner: Adv. R. Basant (Sr. Adv.), Anzu. K. Varkey (AOR), Mahesh Sharma
Advocate for Respondent: Adv. P.V. Dinesh (Sr. Adv.), Harshad V. Hameed (AOR), Dileep Poolakkot, Ashly Harshad, Anna Oommen, Anshul Saharan
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