Guha Ray, J.
1. This is a petition for revision of an order, of demolition of the covered portion of a verandah of premises No. 36 Royal Exchange Place, Calcutta, passed on 2-5-1953 by the Municipal Magistrate, under Section 364, Calcutta Municipal Act, 1923.
2. The petitioners claim to be tenants in respect of different rooms of the premises, and all claim to be interested in the portion of the verandah of which the demolition has been ordered. Their case is that they are entitled to notices under the proviso (i) to Section 364 (1) and they were not given any notice before the order of demolition was made.
3. On behalf of the Corporation of Calcutta, no counter affidavit was filed, nor is the Corporation in a position to controvert the case of the petitioners that they are tenants interested in the portion of the premises which has been ordered to be demolished. It is also not disputed that the petitioners were not actually served with any notice.
4. The only question then for decision here is whether the petitioners are really entitled to any notice. The proviso in question is in the following terms:
'Provided also that the magistrate - (i) shall not make any order under this section without giving the 'owner' and 'occupier' of the structure to be so demolished or altered full opportunity of adducing evidence and of being heard in 'his' defence:'
It is urged on behalf of the Corporation that the section can only mean that before the Magistrate is entitled to make an order he is to issue a notice on the owner is also the occupier of the building. That interpretation would lead to certain absurd result, namely, that unless the building is occupied by the owner himself, the Magistrate would be entitled to pass an order of demolition without serving any notice on any one, because in that case, there would be no necessity at all of serving any notice on the occupier. The absurdity of this construction led this High Court to hold that the real meaning of the proviso is that the Magistrate is to direct notices to be issued both on the owner and the occupier, and that they are to be given full opportunity of adducing evidence and of being heard in their defence.
This is the view taken in the case of -- 'Gobindra Charan Maji v. Corporation of Calcutta', 53 Cal W. N. 813 (A), and also in the case of --'Kartick Chandra v. Corporation of Calcutta', : AIR1953Cal87 (B). Of course both of those cases were interpreting a proviso in exactly the same terms to Section 363, Calcutta Municipal Act. It is clear from the scheme of the two sections that before the Corporation can apply to a Magistrate either under Section 363 or under Section 364, it is to give the owner in the first case and the owner or the occupier in the second, an opportunity of being heard. Thus after an application has been filed and before an order can be made under either of these sections, the notice or notices required by the provisos in question have got to be served. Besides, as already stated, if it was intended to serve only an owner in occupation with a notice, evidently no notice was necessary on any one when the owner was not in occupation and the Magistrate would be entitled to pass an order without any notice in such a case.
If what was intended in both the sections was that only the owner should be served with a notice, even when an application has been made to the Magistrate, there was no necessity whatever for using the word 'occupier' at all. If therefore, one sticks to the strictly grammatical construction, one must arrive at a meaning which would make the word 'occupier' not merely superfluous but practically without any significance. One has in the circumstances necessarily to look for a different mode of construction which will give the sections a coherence and a meaning, even though such a construction might run the risk of making the sentence grammatically incorrect. The only reason that one can think of introducing the occupier at the later stage when an application has been made but before an order has been made and for thus making a differentiation between the procedure to be adopted at the earlier stage, namely before the filing of an application and that to be adopted by the Magistrate after an application has been made, is that while no harm is likely to be done if one or the other of the interested parties is not served with a notice at the earlier stage, irreparable injury is bound to be caused by an order without notices to both.
The very facts of the omission from Section 363 of the word 'occupier and the use in Section 364 of the words 'owner' or 'occupier' and of the introduction of the word 'occupier' side by side with the word 'owner' in the provisos in question to Sections 363 and 364 go to suggest a differentiation having been intended between the requirements of the law at the two stages and the only possible explanation of that differentiation being on the lines indicated, that must necessarily be adopted. We, therefore, respectfully agree with the construction put upon the provisos in the two cases referred to. It is thus clear that as no notice was served on the petitioners, the order of demolition was bad, and must be set aside. The Rule must, accordingly, be made absolute. The order of the demolition passed by the Magistrate must be set aside and matter sent back to him for disposal according to law.
5. It appears that the proceedings were initiated sometime in May 1951, and the order challenged before us was not made till 2-5-1953. The learned Magistrate should, therefore, try to expedite the proceedings as far as possible.
Debabrata Mookerjee, J.
6. I agree.