JUDGMENT Harries, C.J. - This is a petition for revision of an order of a learned Magistrate made under sec. 363 of the Calcutta Municipal Act. The Petitioners in their petition alleged that they were the tenants of certain premises known as No. 30, Khangraputty Street, Calcutta. There are six Petitioners who were in occupation of different shops in these premises. They alleged in the petition that they had been carrying on business in those premises for several years. 2. They further alleged in their petition that the landlord had been trying to eject his tenants for sometime and having failed, they suggested, he moved the Corporation to issue a demolition order. 3. There can be no doubt that a demolition order was made in respect of these premises under sec. 363 of the Calcutta Municipal Act on the ground that certain erections had been made on the premises without previous written permission of the Corporation. 4. The material portions of sec. 363 of the Calcutta Municipal Act are as follows: (1) If the Corporation are satisfied--(1) that the erection of any new building-- (a) has been commenced without obtaining the written permission of the Corporation, or * * * * * they may, after giving the owner of such building an opportunity of being heard, apply to a Magistrate and such Magistrate may make an order directing that such erection, alteration, addition or other work, as the case may be, or so much thereof as has been executed unlawfully as mentioned in clauses (1), (2) or (3) * * * * * (i) be demolished by the owner thereof....... (ii) be demolished or altered by the Corporation at the expense of the said owner : Provided that the Magistrate-- (a) shall not make any order under this section without giving the owner and occupier of the building to be so demolished or altered full opportunity of adducing evidence and of being heard in his defence. 5. The complaint of the Petitioners is that a demolition order under this section was made without any notice to them and without their knowledge. According to their petition which is verified, the first they knew was that a demolition order had been made. 6. On behalf of the Calcutta Corporation it was contended by learned Advocate that no notice of these proceedings need be given to a tenant. According to their petition which is verified, the first they knew was that a demolition order had been made. 6. On behalf of the Calcutta Corporation it was contended by learned Advocate that no notice of these proceedings need be given to a tenant. It was urged that the words in the proviso, (a) shali not make any order under this section without giving the owner and occupier of the building............................................ full opportunity of adducing evidence mean without giving the owner in occupation full opportunity of adducing evidence. 7. The phrase "owner and occupier" it was urged must be read as "the owner in occupation." This, it is said, must be so, because of the use of the words "of being heard in his defence." If two persons were concerned, it was urged, the words should be "of being heard in their defence." 8. The section is not too happily drafted but I think, the words of proviso (a) are clear. The owner and occupier must be given an opportunity of being heard in their defence, that is, the owner in his defence and the occupier in his defence. 9. It was urged that where it was intended that notice should be given to a party the statute always said so. It seems to me quite clear that these words do involve the giving of notice. Earlier in this section it is provided that where a building has been erected without permission, the Corporation can apply to a Magistrate for an order, but it can only do so after giving the owner of such building an opportunity of being heard. How can the owner of a building be given an opportunity of being heard unless he is told that the Corporation proposes to apply to a Magistrate. In other words, the owner must have notice that the Corporation proposed to apply to a Magistrate. In the same way proviso (a) contemplates that both owners and occupiers should have notice. But even if notice were not required no order could be passed unless the court was satisfied that the owners and occupiers knew of the proceedings and did not desire to give any evidence or to put forward any defence. In the present case there was certainly no notice and the allegations made by the Petitioners that they were wholly unaware of these proceedings have not been controverted by any counter-affidavit. In the present case there was certainly no notice and the allegations made by the Petitioners that they were wholly unaware of these proceedings have not been controverted by any counter-affidavit. It is therefore admitted that the whole of these proceedings up to the orders took place behind their back and it seems to me that that is a clear contravention of the proviso (a) to which I have already made reference. 10. It was urged that these persons could not be occupiers. They alleged that they are tenants of the owner and it is quite clear from the definitions of the terms "occuper" and "owner" in sec. 3 of the Act that a tenant and indeed even a sub-tenant is an occupier. Prim facie the term "occupier" means the person in occupation and a tenant in possession obviously is in occupation. 11. In my view the words of the statute are clear. But if any authority was needed such is found in the case of Ashutosh Sarkar v. Corporation of Calcutta 48 C.W.N. 170 (1943) in which it was held that a person who is in fact an occupier of certain premises or a portion thereof, although not recorded as such in the assessment book, is entitled under proviso (a) to sec. 363 of the Calcutta Municipal Act to an opportunity of being heard and adducing evidence against an application for demolition, though he is not entitled to a notice made out in his own name. 12. In the present case it is quite clear that the order made by the learned Magisrtate cannot stand, as these Petitoners were never given an opportunity to put forward their defence. 13. It was suggested that the petition does not show that they were in possession at the time the application was made for a demolition order. But they stated clearly in a petition made in November, 1948, that they had been tenants for several years. They were tenants certainly in 1946, if that statement be true and these proceedings were not commenced until long after. As I have said, the allegations in the petition have not been controverted. 14. Lastly, it was said that we should not set aside the order of the learned Magistrate unless we were satisfied that the Petitioners had a defence. They were tenants certainly in 1946, if that statement be true and these proceedings were not commenced until long after. As I have said, the allegations in the petition have not been controverted. 14. Lastly, it was said that we should not set aside the order of the learned Magistrate unless we were satisfied that the Petitioners had a defence. If we were satisfied that the Petitioners had a defence there would be nothing to send back to the learned Magistrate. We would at once set aside his order. There are indications in the petition that the Petitioners will contend inter alia that these proceedings were mal fide. However, it is not for us to say whether they can establish a good defence or not. What must be given to them is an opportunity to put forward their defence and that opportunity has been denied to them. That being so the order made by the learned Magistrate must be set aside and he must after giving due notice of the time and place hear the Petitioner's and after considering their defence he can then make an order under sec. 363 of the Calcutta Municipal Act, if he is of opinion that there is no substance in that defence. 15. The result, therefore, is that the order of the learned Magistrate is set aside and the case is sent back to him to be re-heard and decided in accordance with the observations made in this judgment and in accordance with law. The Rule is disposed of in these terms. Das-Gupta, J. I agree.