HARRIES,C.J. - (1.) THIS is a petition for revision of an order made by Shri A.N. Mukherjee, Municipal Magistrate of Calcutta dated April 19, 1950 directing that a corrugated iron shed in the occupation of the petitioner be demolished.
(2.) THE petitioner claimed to be a tenant of the lessee of certain premises known as Nos. 137 and 137A Canning Street in this city. The lessee of the premises was a man called Tapuria. It seems that on June 14, 1949 an application was made to the learned Municipal Magistrate under Section 363 of the Calcutta Municipal Act and upon that application a summons was issued. The corporation's case was that certain unauthorised structures had been made on these premises namely, the addition of a fifth storey and a staircase and the erection of a corrugated iron shed. The order -sheet shows that on November 1, 1949, a general notice was served. On April 19, 1950 there was a consent order made, the lessee Tapuria consenting. The petitioner who was, as I have said, a subtenant was not present and was not represented and therefore no question of his consenting to the order can arise. The consent order was to the effect that the corrugated iron shed was to be demolised by the Corporation, whereas the other structures were allowed to remain. It is that order which the present petitioner seeks to revise. The petitioner's case is that as an occupier of the premises and of the corrugated iron shed in particular he was entitled to a notice of these proceedings and further that no order of demolition could be made without the Court being satisfied that he had an opportunity of presenting his case and being heard. The petitioner's case is that he knew nothing of these proceedings and never had an opportunity of showing cause why an order for demolition should not be made.
(3.) A Bench of this Court in a comparatively recent case has held that the occupier of premises is entitled to a notice under Section 363 of the Calcutta Municipal Act. In 'Gobinda Charan v. Corporation of Calcutta', 53 Cal W N 813, it was held that according to the proviso to Section 363 of the Calcutta Municipal Act both the owners and occupiers must have notice that the Corporation proposed to apply to a Magistrate for a demolition order and the Court before passing such an order must be satisfied that they had such notice and did not desire to adduce any evidence or put forward any defence. To pass any order behind their backs is a contravention of the said proviso. The Bench further went on to hold that a tenant and even a subtenant is an occupier within the meaning of Section 3 of the Calcutta Municipal Act. Prima facie the term 'occupier' means the person in occupation.;