ARUN KUMAR BHATTACHARYA, J.

( 1 ) THE hearing stems from an application filed by the petitioners praying for revision of the order dated 05. 12. 1998 passed by the Municipal Building Tribunal, Calcutta Municipal Corporation in Appeal no. 13/1993 affirming in part the order dated 27. 01. 1990 passed by the municipal Commissioner in Case No. 89-D of 1987-88.

( 2 ) THE background history of the said revision is that the petitioners are tenants in respect of a tin shade at a monthly rental of Rs 100/- under Estate kumar Jagadish Chandra Sinha since June, 1987. The O. Ps. initiated a demolition case being No. 89-D of 1987-88 in respect of the said tenanted premises without service of any notice upon the petitioners, and the Special officer (Building) passed an order dated. 27. 01. 1990 for demolition of the said tenanted room without assigning any reason holding petitioners as also landlord responsible for the unauthorized construction. Neither any notice of the inspection alleged to have been held by the Building Inspector nor report of inspection was served upon the petitioners and the owner of the premises. The order of demolition could not be passed as the structure is a kutcha one and garage should stand always in front of the premises. The appeal being No. 13/1993 preferred by the petitioners was allowed in part by the Municipal Building Tribunal with a direction to the petitioners and owner to demolish the wall of southern and eastern side to the extent of 1. 20 meters of vacant space and to pay Rs. 10,000/- towards penalty, sketch fees etc. without specifying the basis therefor.

( 3 ) BEING aggrieved by, and dissatisfied with, the said order, the petitioners have preferred the present revision.

( 4 ) ALL that now requires to be considered is whether the Id. Tribunal was justified in passing the said order.

( 5 ) INDUBITABLY, Jagadish Ch. Agarwal, predecessor of the present petitioners, was originally tenant in respect of the disputed shed under the Estate Kumar jagadish Chandra Sinha at a monthly rental of Rs. 100/- payable according to english calendar month, as is evinced from the documents filed. The petitioners' case is that they are tenants in respect of the said shed since June, 1987.

( 6 ) MR. Jiban Ratan Chatterjee, ld. Counsel for the petitioners, assailed the impugned order on the ground that no notice upon his client was served in respect of the demolition Case No. 89-D of 1987-88, and on this ground alone the order is liable to be set aside.

( 7 ) SUB-SECTION (1) of section 400 of the Kolkata Municipal Corporation Act, 1980 authorizes the Municipal Commissioner to make an order directing the person concerned who has made unauthorized erection to demolish the said unauthorized construction within the period specified therein after delivery of a copy of order of demolition with a brief statement of the reasons therefor to the said person. The first proviso to the said sub-section (1) prohibits in mandatory terms to pass order of demolition unless such person has been given, by means of a notice served in such manner as the Municipal Commissioner may think fit, a reasonable opportunity by showing cause as to why such order shall not be made. As per Explanation to the said sub-section, the expression "the person at whose instance" means the owner, occupier or any other person who causes the erection of any building or execution of any work to be done, including alterations or additions, if any, or does it by himself. It is the specific case of the petitioners that their landlord after construction of the tin shed inducted them as tenant in June, 1987, that they have been carrying on business of garrage in the said tin shed room and they did not make any construction and that they are not aware as to when the construction was made but the proceeding was initiated in 1987 itself. The expression "by the person at whose instance" denotes only such person having something to do with the work of such construction w

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