Compliance with principles of natural justice is not essential for demolition of unauthorized construction under Section 400(8) of the KMC Act, provided that the exercise of power is reasonable.

INDIRA BANERJEE, J.

1. THE main question involved in this writ application is, whether compliance with principles of natural justice, is essential for demolition of the three upper storeys of a building, constructed without sanction, in violation of Section 392 of the Kolkata Municipal Corporation Act, 1980, hereinafter referred to as "the KMC Act".

2. THE petitioner, who claims to be a Civil Engineer, applied for sanction of and was sanctioned a building plan for const ruction of afour storeyed building Ground + Three at the premises specified in paragraph 3 of the writ petition. A copy of the sanctioned building plains annexed to the writ petition. According to the petitioner, construction of the building has been completed and some interior work is in progress. In or about May, 2010, Kolkata Municipal Corporation, hereinafter referred to as KMC, issued a notice under Section 401 of the KMC Act, calling upon the petitioner to stop all construction, including additions and/or alterations at the premises in question. Guards were also posted to ensure that no further construction was carried out. By a letter served on KMC on 24th August, 2010, the petitioner undertook to suspend all work, and requested the Executive Engineer of the concerned Borough to withdraw the guards. It is alleged that on 28th December 2010, some persons claiming themselves to be representatives of KMC started demolishing the fifth floor of the building, whereupon the petitioner filed this application under Article 226 of the Constitution of India. On 31st January, 2011, this Court passed an interim order, restraining the respondents from proceeding with the demolition, which has from time to time been extended. 2. There can be no dispute that while a building plan was sanctioned for construction of a ground + three storeyed building, the petitioner constructed a seven storeyed building (basement + ground + six) having a height of about 20.30 metres. THE short question in this writ application is whether a demolition order could have been passed, without giving the petitioner an opportunity of hearing.

Section 392 of the 1980 Act provides that no person shall erect or commence to erect any building or execute any of the works specified in Section 390, except with the previous sanction of the Municipal Commissioner and in accordance with the provisions of Chapter XXII of the 1980 Act and of the rules and regulations framed under the 1980 Act in relation to erection of building or execution of work.

3. UNDER Section 396, the Municipal Commissioner is required to sanction the building plan or the execution of work unless building or the work could contravene any of the provisions of sub-section (2) or sub-4 section (3) of Section 396 or Sections 405 or 406 of the 1980 Act. Sections 405 and 406 are not attracted in this case. Section 396(2) empowers the Municipal Commissioner to refuse sanction of a building or a work on any one or more of the following grounds:

i) Contravention of the provisions of the 1980 Act or any rules and regulations framed thereunder or of any other law for the time being in force. ii) Notice of sanction being devoid of material particulars and/or not in accordance with the Rules and Regulations. iii) Want of material information. iv) Absence of sanctioned lay out plan under Section 364, where necessary. v) Encroachment of Government land or land vested in KMC vi) No access from any street.

Section 398(1) of the 1980 Act provides that where, within a period of 60 days, or in cases falling under Clauses (b) to (m) of sub-section (1) of Section 390, within a period of 30 days of receipt of notice, the Municipal Commissioner does not refuse sanction for erection of a building, or erection of any work, or upon refusal, does not communicate the refusal to the person who has given the notice, such person may make a representation in writing to the Mayor. Section 398 (2) provides that where the erection of a building or the erection o