1954 Supreme(Cal) 155

HIGH COURT OF CALCUTTA
CHAKRABARTI, K. C. CHUNDER, S. R. DASS, P. N. MUKHERJEE, GUHA RAY
BAKUL BEHARI ROY - Appellant
Versus
CORPORATION OF CALCUTTA - Respondent
Full Bench Ref.  1  Of  1953
Decided On : AUGUST 19, 1954

The Court held that Section 504 of the Act applies to notices issued by Magistrates and that a notice under Proviso (a) to Section 363(1) is governed by that section.

Headnote:

The Calcutta Municipal Act, 1923, Section 363(1) proviso, Sections 503, 504, 144(3) - Notice to unregistered owners or occupiers - Form and mode of service.

Fact of the Case:

The petitioner, an unregistered occupier of a building, challenged the demolition order passed by the Municipal Magistrate without serving him with a notice individually. The petitioner contended that under the proviso to Section 363(1) of the Calcutta Municipal Act, 1923, he was entitled to be served with a notice of the demolition proceeding and that no such notice having been served, the order of demolition was not valid in law.

Finding of the Court:

The Court held that Section 504 of the Act applies to notices issued by Magistrates and that a notice under Proviso (a) to Section 363(1) is governed by that section. It further held that the notice contemplated by Proviso (a) to Section 363(1) is a notice to be given by way of, and for the purpose of, providing an opportunity to the owner or occupier or owners or occupiers concerned to adduce evidence and to be heard in defence. The Court observed that in view of such object of the notice, everything possible should be done to make it reach the particular owner or occupier as the person addressed by the Court and as the person invited by it to offer his defence and adduce evidence in its support. The Court held that it is only when the existence of an unregistered owner or occupier is known to the Corporation but his identity is not known and cannot be ascertained or where neither the existence nor the identity is known, but still there is reason to think that there may be an unregistered owner or occupier, that a notice in no particular name but addressed to the owner or occupier as such or to owners or occupiers in general, can be given.

Issues: 1. Whether notices even to unregistered owners or occupiers are to be issued by name and individually? 2. How service is to be effected by a notice under Proviso (a) to Section 363.

Ratio Decidendi: The Court held that Section 504 of the Act applies to notices issued by Magistrates and that a notice under Proviso (a) to Section 363(1) is governed by that section. It further held that the notice contemplated by Proviso (a) to Section 363(1) is a notice to be given by way of, and for the purpose of, providing an opportunity to the owner or occupier or owners or occupiers concerned to adduce evidence and to be heard in defence. The Court observed that in view of such object of the notice, everything possible should be done to make it reach the particular owner or occupier as the person addressed by the Court and as the person invited by it to offer his defence and adduce evidence in its support. The Court held that it is only when the existence of an unregistered owner or occupier is known to the Corporation but his identity is not known and cannot be ascertained or where neither the existence nor the identity is known, but still there is reason to think that there may be an unregistered owner or occupier, that a notice in no particular name but addressed to the owner or occupier as such or to owners or occupiers in general, can be given.

Final Decision: The Court answered the questions referred to it as follows: "Question (i): It is not imperative that notices even to unregistered owners or occupiers must in all cases be issued by name and individually. In the case of a notice under Proviso (a) to Section 363(1) to unregistered owners or occupiers, it may be a notice simply addressed to the owner or occupier as such or a notice addressed to owners or occupiers in general, according to the circumstances of a case, but the Magistrate should, in discharge of his statutory duty to give a full opportunity to even such owners or occupiers to adduce evidence and to be heard in their defence, satisfy himself before direct-ing the issue of a notice without any name or in a general form that the names of the unregistered owners or occupiers for whom such notice is intended are not known to the Corporation and cannot be ascertained. When the name of an unregistered owner or occupier is known, the notice ought to be made out in his name. Question (ii): The service of a notice under Proviso" (a) to Section 363(1) is to be effected in the mode laid down in Section 504, following the order there prescribed, according to the circumstances of each case, subject to the condition that where the Corporation have proceeded in the manner indicated in the Proviso to Clause (a) of the section and served only one or some of the owners or occupiers required to be served, the Magistrate should examine the position and decide whether he will direct service on the persons not served. In the case of unregistered owners or occupiers, if the notice is in the name of an individual, the modes prescribed in the section must be followed in the sequence given. If it is a notice addressed simply to an owner or occupier as such, his existence being known taut his name unknown, service should be effected in the same manner. If it is a notice in a g eneral form, it may be served even initially in the mode prescribed in Clause (c) of the section. "