Archana Agarwal vs State of West Bengal & Anr.

UDAY KUMAR, J.: –

Urban development is neither a private enterprise of unbridled whim nor an arena where financial clout can subordinate collective safety; it is a sacred compact governed by the rule of law, structural discipline, and public welfare. When municipal regulations crafted to safeguard human lives, civic infrastructure, and environmental equilibrium are treated as mere inconveniences to be bypassed by clever drafting or a veneer of partial permits, the judiciary cannot remain a silent spectator. The matter at hand presents a classic, albeit alarming, manifestation of this modern urban malady: an instance where a restricted, minor municipal permission for roof repairs was weaponized as a legal shield to raze an entire load-bearing structure and erect an unauthorized, un-engineered multi-storied concrete skeleton in a congested heritage lane of Kolkata. This Court is tasked with examining whether the concurrent verdicts of conviction, sentencing, and remedial demolition rendered by the courts below suffer from any perversity, manifest illegality, or misreading of evidence so as to warrant revisional interference.

The genesis of these proceedings traces back to Premises No. 167, Muktaram Babu Street, Ward No. 25, Borough No. IV, Kolkata, a densely populated urban fabric characterized by narrow access ways and delicate civic infrastructure. On December 15, 2014, the petitioner-accused, Archana Agarwal, acquired ownership of the said premises, subsequently getting her name mutated in the assessment records of the Kolkata Municipal Corporation (KMC). Seeking to undertake building works, the petitioner approached the municipal authorities and obtained Sanction Plan No. 21/Br-IV/2018-19 (Exbt. 1) on December 19, 2018. On its face and by its explicit technical design, this sanction was strictly and narrowly confined to the "reconstruction of roofs only" of an existing two-storied structure, backed by the professional oversight of a Licensed Building Surveyor (LBS) and an Empanelled Structural Engineer (ESE).

However, reality on the ground bore no resemblance to the paper sanction. On April 16, 2019, Mr. Gopal Kumar Paul, Assistant Engineer (Building) of Borough No. IV (PW-1), conducted a spot inspection of the premises. What he uncovered was a total subversion of the municipal permit: the entire original building had been systematically demolished down to its base, and a completely fresh, unverified structural framework comprising heavy RCC columns and tie beams was being aggressively raised without any structural stability certificates, soil testing, or LBS/ESE supervision. Recognizing the imminent peril this un-engineered construction posed, not only of sudden structural collapse but also of choking local drainage, sewerage, water supply, and emergency fire access in a congested lane, the Assistant Engineer promptly lodged a written complaint at the Girish Park Police Station on May 2, 2019. This set the criminal machinery in motion, culminating in Girish Park P.S. Case No. 45 of 2019.

Following a thorough investigation, the Investigating Officer (PW-7) submitted Charge Sheet No. 28/2020 on November 30, 2020, against the petitioner under Section 401A of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as 'KMC Act' in short). The case was subsequently endorsed for trial before the Learned Municipal Magistrate, 2nd Court, Kolkata. During the ensuing trial, the prosecution adduced oral testimonies from eight key witnesses, spanning municipal engineers, the LBS, local independent residents, and police investigators, and formally exhibited fifteen crucial documentary pieces, including the sanction plan, case reports, stop-notice service returns, and inspection books. When examined under Section 313 of the Code of Criminal Procedure, the accused offered a bare denial of culpability, asserting she acted strictly within the sanction, yet failed to lead any affirmative defence evidence or structural reports.

The Learned Trial Court, vide its considered judgment dated June 24, 2022, found the petitioner guilty under Section 401A of the KMC Act, sentencing her to simple imprisonment for two years and a fine of Rs. 50,000/-, with a default stipulation, alongside invoking Sections 583 and 584 of the KMC Act read with Section 452 Cr.P.C. to order the physical demolition of the unlawful structure through the Municipal Commissioner. Aggrieved by the conviction, sentence, and demolition mandate, the petitioner preferred a Criminal Appeal under Section 374(3) Cr.P.C. (Criminal Appeal / GR Case No. 42 of 2020), urging thirty-four distinct grounds touching upon alleged evidentiary gaps, photographic omissions, and procedural misapplications. The First Appellate Court, vide its comprehensive judgment dated September 19, 2022, meticulously re-evaluated the entire mosaic of evidence, upholding the findings of guilt and the quantum of sentence while prudently refining the demolition directive to ensure strict alignment with the KMC Act, Building Rules, and overarching High Court procedural safeguards. Unyielding, the petitioner has now brought the matter before this Revisional Court, inviting judicial scrutiny over concurrent findings of fact and law.

Mr. Mainak Bose, Learned Senior Advocate for the petitioner submitted that the concurrent judgments and orders of conviction and sentence passed by the courts below are vitiated by gross perversity, a fundamental misreading of the evidence, and an erroneous application of municipal criminal jurisprudence, warranting immediate interference under revisional jurisdiction. He vehemently argued that the entire prosecution case rests on the false premise that the petitioner executed an unauthorized, illegal construction, whereas the petitioner actually held a valid and subsisting Sanction Plan (Exbt. 1) issued by the Kolkata Municipal Corporation (KMC) for the reconstruction of the premises at No. 167, Muktaram Babu Street. The learned Senior Advocate contended that the execution of supportive structures, such as RCC columns and tie beams, during the reconstruction of a pre-existing multi-storied building is an essential engineering necessity and cannot be criminalized as "unauthorized construction."

Furthermore, Mr. Bose argued that to sustain a conviction under Section 401A of the KMC Act, the prosecution must independently establish that the construction actively endangered human life or caused severe disruption to public utilities, but the prosecution failed to adduce any scientific audit, material strength report, soil test, or expert structural evaluation, relying instead on vague visual inspections. He pointed out that the testimony of prosecution witnesses is plagued by material contradictions, noting that PW-1 (Assistant Engineer) admitted during cross-examination that no specific dimensions or measurements of the alleged deviation were recorded in the initial case report, site photographs (Exbt. 12) lacked proper premises identification, and the Licensed Building Surveyor (PW-5) admitted to having no documentation proving that work exceeded the sanctioned framework.

He further submitted that both courts gravely erred in law by shifting the evidentiary burden onto the defence to prove structural safety, ignoring the principle that the initial burden rests squarely on the prosecution, and committed a procedural illegality by invoking Section 584 of the KMC Act (directing demolition) in the final judgment when no such specific charge had been framed at the inception of the trial.

Lastly, Mr. Bose urged that assuming minor procedural variations existed, the imposition of two years' imprisonment coupled with an arbitrary order of total demolition is shockingly disproportionate, as the lower courts mechanically applied generalized environmental precedents (Shanti Sports Club, Friends Colony) without establishing any actual, tangible public hazard, ignoring that minor or remediable deviations under municipal law ought to be addressed through compounding provisions rather than a draconian penal demolition axe against a private homeowner. It is further argued that the proceedings are not maintainable due to conflicting parallel actions, noting a prior KMC notice dated May 28, 2024, issued on the same set of allegations, and asserting that the prosecution was improperly initiated without direct authorization from the Municipal Commissioner. Placing reliance on the statutory framework of Section 621(2) of the KMC Act and decisions of this Hon'ble Court in Shyam Sundar Singh v. State of West Bengal (C.R.R. 2034 of 2018 decided on 08.04.2024) and Sri Sachindranath Biswas v. State of West Bengal (C.R.R. 2033 of 2018 decided on 29.03.2022), learned counsel submits that the subsequent filing of regularization applications and payment of compounding fees extinguish further penal proceedings.

Per contra, Ms. Puja Goswami, learned Advocate for the opposite parties (State and KMC) stoutly defended the concurrent findings of both trial and appellate courts, submitting that the revisional application is devoid of merit and deserves outright dismissal. She submitted that both the Trial Court and the First Appellate Court concurrently evaluated the entire body of evidence comprising eight prosecution witnesses and fifteen exhibits and arrived at a definitive finding of guilt, and in the absence of any patent perversity, glaring procedural defect, or absolute misreading of evidence, this Revisional Court ought not to re-weigh or re-appreciate factual findings as a second court of appeal. She further contended that the defence's attempt to hide behind Sanction Plan (Exbt. 1) is a deliberate distortion of facts because the sanction was strictly limited to the reconstruction of roofs only for an existing structure, whereas the petitioner completely demolished the original load-bearing walls and illegally raised an un-engineered, brand-new multi-storied concrete skeleton instead of executing permissible repairs. This total transformation is firmly corroborated by the testimony of the Licensed Building Surveyor (PW-5), who formally withdrew her supervision upon discovering the illegal demolition.

Ms. Goswami further submitted that the un-engineered replacement of structural components in a densely congested urban lane like Muktaram Babu Street inherently creates an imminent threat to human life and chokes essential municipal services like drainage, sewerage, water supply, and emergency fire tender access, and these civic hazards were conclusively established through the testimonies of municipal engineers (PW-1, PW-6), the Empanelled Structural Engineer (PW-8), and local independent residents (PW-2, PW-3), thereby satisfying all statutory ingredients of Section 401A. Finally, Ms. Goswami argued that Section 584 of the KMC Act, read with Section 452 of the Cr.P.C., explicitly empowers the court to order the dismantling of unlawful structures upon conviction, and the appellate court exercised sound judicial prudence by ensuring that the demolition directive operates in harmony with the KMC Act, Building Rules, and overarching judicial safeguards, while the sentence of two years' imprisonment falls well within statutory parameters and is fully justified given the deliberate defiance of municipal laws. Addressing the petitioner's subsequent reliance on a regularization order of the Special Officer (Building), KMC dated July 5, 2024, brought on record via supplementary affidavit, she contended, drawing strength from the dictum of the Hon'ble Supreme Court in G. Mohandas v. State of Kerala & Ors. [2025 SCC OnLine SC 1434], that subsequent administrative regularization or compounding does not wipe out or nullify an already established criminal conviction for an offense previously committed.

Upon a rigorous and anxious consideration of the rival submissions advanced by the learned counsel for the contesting parties, and upon an independent, meticulous scrutiny of the lower court records, the following core questions stand for determination before this Revisional Court:

Firstly, whether a restricted, minor municipal permit for "reconstruction of roofs only" can legally shield the total demolition of an existing structure and the un-engineered erection of a brand-new multi-storied concrete framework;

Secondly, whether the prosecution successfully established the statutory ingredients of a public safety and civic hazard under Section 401A of the KMC Act without relying on speculative visual assessments;

Thirdly, what effect, if any, subsequent regularization applications, compounding provisions under Section 621(2) of the KMC Act, and supervening administrative orders have on an already established criminal conviction and sentence; and

Fourthly, whether procedural and evidentiary safeguards including the initial burden of proof, framing of charges, and invocation of remedial demolition powers under Section 584 of the KMC Act read with Section 452 of the Cr.P.C. were compromised, and whether the sentence and demolition orders are disproportionate.

Addressing the first core question, whether a restricted, minor municipal permit for "reconstruction of roofs only" can legally shield the total demolition of an existing structure and the un-engineered erection of a brand-new multi-storied concrete framework, this Court must anchor its analysis firmly upon the factual substratum as it unspools from the ocular and documentary evidence on record. The bedrock of the prosecution's case rests upon the stark and irreconcilable variance between the permission granted and the actual execution on site. The petitioner secured Sanction Plan No. 21/Br-IV/2018-19 (Exbt. 1) that was narrowly, explicitly, and unambiguously restricted to the "reconstruction of roofs only" of an existing two-storied structure situated at Premises No. 167, Muktaram Babu Street. However, the spot inspections conducted by Assistant Engineer Gopal Kumar Paul (PW-1) and Sub-Assistant Engineer Dilwar Hossain (PW-6), which stood fully corroborated by the formal withdrawal of the Licensed Building Surveyor Chhandita Mitra (PW-5) and the expert testimony of Empanelled Structural Engineer Rupak Kumar Banerjee (PW-8), laid bare an outright, wholesale demolition of the original load-bearing structure. In the place of mere roof repairs, a fresh, unverified skeleton featuring heavy reinforced cement concrete (RCC) columns and tie beams was aggressively raised.

The statutory framework governing this core controversy finds expression primarily within the provisions of the Kolkata Municipal Corporation Act, 1980. Section 401A of the said Act creates a substantive penal offence for undertaking or carrying on construction of any building in contravention of the provisions of the Act or the rules made thereunder, specifically targeting unauthorized works that create a hazard to human life, safety, or public utilities. Furthermore, Sections 583 and 584 of the KMC Act empower the Municipal Magistrate, upon recording a conviction, to direct the Municipal Commissioner to physically demolish or dismantle the unlawful structure, a mechanism read harmoniously with Section 452 of the Code of Criminal Procedure. The foundational intent behind these legislative enactments is the preservation of urban discipline, civic safety, and structural integrity.

The petitioner's audacious plea that the erection of heavy RCC columns and tie beams is an automatic legal corollary or structural necessity to "reconstruction" is factually and structurally untenable under established municipal jurisprudence. Reconstructing a roof within an existing structural envelope is vastly distinct from razing an entire building down to its foundation and casting a brand-new, unverified structural framework. This core deception was further cemented by the independent testimonies of local residents (PW-2 and PW-3), leaving both the trial and appellate courts entirely justified in concluding that the petitioner abused a minor repair permit to execute major unauthorized construction. Obtaining such a restricted permit was, in essence, an idle formality unless the true intention was to create a paper trail to mask future illegality.

This judicial evaluation is fortified by the unbroken stream of binding precedents from the Hon'ble Supreme Court regarding urban lawlessness. In the landmark pronouncement of Dipak Kumar Mukherjee v. Kolkata Municipal Corporation and Ors. [(2013) 5 SCC 336] at paragraph 29 of the report, the Apex Court underscored the societal catastrophe wrought by illegal building practices:

Similarly, in Friends Colony Development Committee v. State of Orissa & Ors. [(2004) 8 SCC 733] and Shanti Sports Club & Anr. v. Union of India [(2009) 15 SCC 705], the Supreme Court reiterated that illegal and unauthorized constructions cannot be condoned, ignored, or regularized lightly, as they directly subvert public order, collective safety, and urban discipline.

Applying these settled principles, statutory provisions, and factual findings to the matter at hand, this Court has no hesitation in holding that a restricted, minor municipal permit for "reconstruction of roofs only" cannot under any principle of law, equity, or engineering serve as a legal shield or blanket authorization to completely demolish an existing load-bearing building and construct an un-engineered multi-storied concrete skeleton. The concurrent findings of the courts below on this core issue are entirely correct, free from any perversity or misreading of evidence, and fully sustainable in law.

Adverting to the second core question, this Court must evaluate the legal sufficiency of the prosecution's evidence against the statutory thresholds regarding public safety and civic hazards. The petitioner vehemently contended that the prosecution case suffered from a fatal evidentiary vacuum because no scientific audit, material strength report, soil test, or expert structural evaluation was produced, relying instead on subjective visual inspections.

The statutory framework governing this aspect is anchored in Section 401A of the KMC Act, 1980, which targets unauthorized construction creating hazards to human life, safety, or public utilities (such as drainage, sewerage, water supply, and emergency fire access). To secure a conviction under this provision, the prosecution must establish:

Upon conviction under Section 401A of the KMC Act, consequential enforcement mechanisms are provided under Sections 583 and 584 of the KMC Act, read harmoniously with Section 452 of the Code of Criminal Procedure, which empower the court to direct the Municipal Commissioner to execute physical demolition.

Upon scrutinizing the record, this Court finds that the prosecution discharged its initial burden of proof comprehensively through robust ocular, documentary, and expert testimony. The record establishes that the prosecution adduced oral testimonies from eight key witnesses, including Assistant Engineer Gopal Kumar Paul (PW-1), Sub-Assistant Engineer Dilwar Hossain (PW-6), the withdrawing Licensed Building Surveyor Chhandita Mitra (PW-5), and Empanelled Structural Engineer Rupak Kumar Banerjee (PW-8), alongside local independent residents (PW-2 and PW-3), supported by fifteen formal exhibits. This collective body of evidence conclusively demonstrated that the un-engineered substitution of the entire structural framework with heavy RCC columns and tie beams in a densely congested heritage lane like Muktaram Babu Street inherently created an imminent peril of structural collapse and choked delicate municipal infrastructure. The argument that the prosecution was legally bound to produce a laboratory material-strength report or soil test is fallacious; where ocular and technical testimonies of municipal experts establish an overt, blatant, and dangerous deviation, specialized scientific audits are not a mandatory prerequisite to prove obvious structural hazards.

This Court therefore answers the second question in affirmative, holding that the prosecution has discharged its burden, proving the statutory ingredients of Section 401A of the KMC Act, and the Trial Court as well as the First Appellate Court, have meticulously weighed the entire body of evidence to reach concurrent findings of guilt against the petitioner.

Adverting to the third core question specifically, what effect, if any, subsequent regularization applications, compounding provisions under Section 621(2) of the KMC Act, 1980, and supervening administrative orders have on an already established criminal conviction and sentence—this Court must carefully examine the legal interface between civil-municipal compounding mechanisms and criminal penal liability. The petitioner sought to press a supplementary affidavit bringing on record a regularization order of the Special Officer(Building), KMC dated July 5, 2024, alongside applications for compounding under Section 621(2) of the KMC Act, vehemently arguing that the submission of regularization fees and the initiation of compounding processes operate to extinguish, abate, or render ineffective ongoing penal proceedings and concurrent convictions.

The statutory architecture of the Kolkata Municipal Corporation Act, 1980, explicitly delineates the scope of compounding. Section 621(2) of the KMC Act provides a statutory mechanism for the compounding of certain municipal offences upon the payment of prescribed compounding or regularization fees, which, under specific administrative parameters, bars further departmental or municipal proceedings with respect to the compounded infraction. However, this administrative mechanism must be construed in harmony with substantive penal provisions such as Section 401A and Section 584 of the KMC Act, which target the grave public safety hazards and calculated violations of urban discipline.

The core legal question of whether subsequent regularization or administrative compounding can retroactively set aside, wipe out, or nullify a validly recorded criminal conviction has been decisively answered by the Hon'ble Supreme Court in G. Mohandas (supra). The Supreme Court established an unyielding dichotomy between civil compounding and criminal culpability, holding unequivocally that subsequent regularization applications or administrative compounding mechanisms cannot retroactively erase, nullify, or grant amnesty from criminal liability for an offence already committed.

Applying this binding ratio to the present matter, the third question in answered in the negative; the subsequent submission of regularization fees or the invocation of compounding provisions under Section 621(2) of the KMC Act does not and cannot extinguish, nullify, or wipe out the prior criminal conviction and sentence validly recorded under Section 401A. Civil and municipal compounding mechanisms operate exclusively in the administrative and revenue spheres, whereas a criminal conviction addresses the completed infraction of public safety, deceit, and defiance of the rule of law. Permitting a violator to utilize post-facto regularization as a retroactive amnesty shield would fundamentally defeat the deterrent objective of criminal jurisprudence, rewarding bad faith and encouraging the strategic abuse of minor municipal permits. Accordingly, the supervening regularization order presented via the supplementary affidavit provides no legal foundation to interfere with the concurrent findings of guilt and sentencing.

Adverting to the fourth core question concerning procedural safeguards, the burden of proof, the framing of charges for demolition, and the proportionality of the sentence, this Court must evaluate the legal parameters governing revisional jurisdiction and penal enforcement. The petitioners have challenged the introduction of demolition orders under Section 584 of the KMC Act in the final judgment when no separate substantive charge for demolition had been framed at the inception, arguing that this improperly shifted the burden of proof onto them.

The legal parameters governing this Revisional Court are strictly delineated under Section 397 read with Section 401 of the Code of Criminal Procedure. A Revisional Court does not function as a second court of appeal to re-weigh evidence or re-appreciate factual findings unless the concurrent judgments of the courts below suffer from patent perversity, gross illegality, or a complete misreading of the record. Consequential enforcement mechanisms are provided under Sections 583 and 584 of the KMC Act, read harmoniously with Section 452 of the Code of Criminal Procedure, which empower the court, upon conviction, to direct the Municipal Commissioner to execute physical demolition.

Regarding the procedural challenges, this Court finds no merit in the petitioner's contentions. The courts below did not improperly shift the burden of proof onto the defence; rather, once the prosecution successfully established a prima facie case of unauthorized construction and public hazard through unimpeached evidence, the evidentiary onus lawfully shifted to the defence under the general principles of evidence to demonstrate compliance or lawful execution, which the defence failed to discharge beyond a bare denial of the petitioner recorded under Section 313 Cr.P.C. Furthermore, the contention that Section 584 of the KMC Act cannot be invoked unless a separate charge for demolition is framed at the trial's inception is legally flawed. Demolition under Section 584 is a statutory, consequential remedial mandate that attaches automatically upon conviction for an unauthorized building offence, rather than a distinct substantive penal charge requiring separate framing under the Code of Criminal Procedure.

This procedural and substantive competence finds firm backing in the jurisprudence of the Hon'ble Supreme Court, which has consistently held that criminal courts possess inherent and statutory jurisdiction to issue remedial dismantling orders at the culmination of a trial involving illegal building infractions. The Apex Court, in various decisions, has delineated the strict boundaries of sentencing and penal enforcement in socio-economic and public safety offenses, establishing that crimes affecting public welfare, municipal discipline, and collective safety do not merit procedural leniency or soft indulgence. When an un-engineered structure is raised in calculated defiance of municipal regulations within a high-density zone, the statutory machinery under Section 401A and Section 584 operates as an integrated legal deterrent to protect human life.

Turning to the final challenge regarding the proportionality of the sentence, the imposition of two years of simple imprisonment coupled with a fine of Rs. 50,000/-, alongside an order of physical demolition this Court notes that a suggestion was posed to exempt the substantive imprisonment while keeping the monetary fine intact. In light of the established judicial benchmarks in Friends Colony (supra), Shanti Sports Club (supra), and Dipak Kumar Mukherjee (supra), this Court finds that exempting the substantive imprisonment while retaining only the fine would be legally unsound and contrary to the deterrent mandate of municipal criminal jurisprudence. When a violator engages in the calculated subversion of municipal safety laws weaponizing a restricted roof-repair permit to completely raze an existing structure and erect an un-engineered multi-storied concrete skeleton in a congested heritage lane like Muktaram Babu Street, reducing the sentence to a mere monetary fine would allow wrongdoers to "buy their way out" of criminal culpability. The concurrent finding on the sentence of two years' simple imprisonment and the fine imposed by the Trial Court, as affirmed and refined by the First Appellate Court, do not suffer from any disproportionate excess or legal perversity, and the modified demolition directives ensuring strict compliance with procedural safeguards are fully warranted.

The comprehensive analysis of the statutory provisions, factual matrix, and judicial precedents yields the following definitive conclusions on the points of law arising in this revision:

First, a restricted, minor municipal permit for "reconstruction of roofs only" cannot under any principle of law, equity, or engineering serve as a legal shield or blanket authorization to completely demolish an existing load-bearing structure and construct an un-engineered multi-storied concrete framework.

Second, the prosecution is not legally required to produce specialized laboratory material-strength reports or soil tests where consistent ocular, documentary, and expert testimonies of municipal engineers establish an overt, blatant, and dangerous public safety hazard under Section 401A of the KMC Act.

Third, subsequent administrative regularization or the payment of compounding fees under Section 621(2) of the KMC Act cannot retroactively erase, nullify, or set aside a validly recorded criminal conviction and sentence for an offence already completed.

Fourth, consequential remedial demolition orders under Section 584 of the KMC Act read with Section 452 of the Cr.P.C. are valid statutory mandates that attach automatically upon conviction and do not require a separate substantive charge to be framed at the inception of the trial.

Fifth, in cases of calculated, hazardous unauthorized construction, substantive penal imprisonment coupled with remedial demolition is essential to uphold urban discipline and collective safety, precluding any unwarranted commutation of sentence.

Accordingly, for the detailed reasons recorded hereinabove, this Revisional Court finds no patent perversity, manifest illegality, or misreading of evidence in the impugned judgments. The criminal revisional application is devoid of merit and stands dismissed.

The concurrent judgments of conviction and sentence passed by the Learned Trial Court and affirmed by the First Appellate Court under Section 401A of the Kolkata Municipal Corporation Act, 1980, are hereby affirmed.

The Municipal Commissioner shall act strictly in adherence to the procedural safeguards established by law, and only after the expiry of the statutory period of appeal.

Let this judgment be placed on record as the final expression of this Court on the interplay between municipal compounding provisions and criminal accountability under the Kolkata Municipal Corporation Act, 1980, and let a copy of this judgment along with the Trial Court Records be transmitted down to the learned courts below forthwith for necessary information and immediate compliance.

Interim order, if any, stands vacated.

There shall be no order as to costs.

Case diary, be returned to the Learned Counsel for the State.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.

LATER

Prayer for stay made by the learned counsel for the petitioner is heard and rejected.