Chakravartti, CJ. - (1.) This reference raises two short questions under proviso (a) to Section 363 (1) of the Calcutta Municipal Act. The facts which have led up to this Reference are as follows :
(2.) On some date in 1950, one Badrudduja who was occupying a flat in the second storey of premises No. 15 Dhurrumtolla Street, Calcutta, made a complaint to the Corporation that one Abdul Hamid, who was occupying the ground floor, had erected a two-storeyed structure to the south of the building which was Interfering with his light and air. On receipt of that complaint, the corporation sent an officer to inspect the premises, who found that not only had a structure been erected in the back space to the south, but another structure had also been erected in the side space to the west. Both were two-storeyed structures with corrugated iron roofs and both were unauthorised. Thereafter, proceedings were commenced under Section 363, Calcutta Municipal Act and after hearing Abdul Hamid, the Corporation made an order on 28-3-1951, that an application be made to the Municipal Magistrate for a demolition order. Actually, the application was made on 5-4-1951, when the Magistrate directed notices to issue for May, 31 following. On 20-5-1951, two notices were Issued, one addressed to Abdul Hamid and another addressed to "All owners and occupiers of premises No. 15, Dhurrumtolla Street", Both the notices were scon 25-5-1951 but when the returns were placed before the Magistrate on the 31st May, he con-, sidered the service on Abdul Hamid to be unsatis- factory and directed a fresh notice to issue. The case was adjourned to 19-7-1951. On that date Abdul Hamid appeared and the Magistrate record-ed an order to the effect that the general notice had been served, adjourning the case to 23-8-1951 for evidence. The case put forward by Abdul Hamid was that he had no concern with the constructions and had been merely a tenant of the structures for more than five years. It is obvious that the case which Abdul Hamid made was one under Sub-section (2) of Section 363. He attended the hearing on the serveral dates on which prosecution witnesses were examin- ed, but when the time came for him to adduce his own witnesses, he asked for time to do so. That application was made on 6-3-1952 and about two months time was allowed. Thereafter he never appeared, though the case was adjourned further twice, and ultimately on 17-7-1952, the Magistrate made an order, directing him to demolish the structures by 30-9-1952 and authorising the Corporation to demolish them at his cost if he failed to do so himself.
(3.) On 31-1-1953, one Bakul Behari Roy, who is the petitioner in the present case, appeared before the Magistrate and made an application in which he stated that he was an occupier of one of the structures but had come to know of the demolition order only three days earlier. He accordingly prayed for six months' time to vacate. That application was rejected by the Magistrate by an order passed on 2-2-1953, but it appears that on the same date, Bakul Behari Roy made a second application by which he prayed for three months' time. He was allowed fourteen days. Apparently, during those fourteen days he received advice that he could challenge the demolition order itself and accordingly on 14-2-1953 he made a fresh application in which he stated that the order of demolition having been passed without notice to him and in his absence, it was illegal and not binding on him. He accordingly prayed that the order might be set aside or he might be granted one week's time for move ing this Court. The Magistrate disposed of the application by an order passed on 16-2-1953 by which he held that he had no power to set aside or revise the order of demolition already passed, but he granted the petitioner one week's time as prayed for. Bakul Behari Roy then moved this Court and obtained a Rule.;