Sabyasachi Mukharji, J. - (1.) There are four petitioners in this application. The subject matter of challenge hereunder Article 226 of the Constitution is the Order No. 36/76/48 dated the 22nd November, 1976. The said order has been set out in paragraph 7 of the petition. The order, inter alia, states as follows:- "Form of order for requisition land under sub-section (I) of section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948. Order No. 36/76/11/48 Dated 22.11.76 Whereas in my opinion it is necessary for the purpose of creating better living conditions in the area to requisition the land described in the Schedule below : And whereas the State Government has by Notification No. 1974-L.A. dated 22.11.63 published in the Calcutta Gazette, Part 1 of the 19.12.63 at page 2521 read with Notification No. 19039-L.A/3A-32/7Pt. dated 22.12.72 published in the Calcutta Gazette. Part 1 of the 11th January, 1973 at page 45 authorised me to exercise the power conferred by sub-section (I) of section 3 of the West Bengal Land (Requisition and Acquisition Act, 1948 (West Bengal Act 11 of 1948). Now, therefore, in exercise of the power conferred by sub-section (1) of section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948 (West Bengal Act II of 1948) (Read with the authority so vested in me as aforesaid). I do hereby requisition the land mentioned in the Schedule below and make the following further orders namely : That the land described in the schedule below shall be placed at my disposal and control on 27.11.76 at 11-30 A.M/P.M. when as officer deputed from this office will take charge and possession of the said land."
(2.) Thereafter in the order there is the description of the land which is not necessary for me to set out for the present purpose. It appears that the order of requisition was passed under the West Bengal land (Requisition & Acquisition) Act, 1948. Section 3 of said Act is as follows : 3. "Power to requisition:- (1) If the State Government is of the opinion that it is necessary so to do for maintaining supplies and services essential to the life of the community or for providing proper facilities for transport, communication irrigation drainage or for the creation, of better living conditions in rural of urban areas not being an industrial or other area excluded by State Government by a notification in this behalf, by the construction or reconstruction of dwelling places for people residing in such areas. The State Government may by order in writing requisition any land and may make such further orders as appear to it to be necessary or expedient in connection with the requisitioning : Provided that no land used for the purpose of religious worship or used by an educational or charitable institution shall be requisitioned under this section. (1A) A Collector of a District, an Additional District Magistrate or the first Land Acquisition collector, Calcutta, when authorised by the State Government in this behalf may exercise within his jurisdiction the powers conferred by sub-section. (1) (2) An order sub-section (1) shall be served in the prescribed manner on the owner of the land and where the order relates to land in occupation of an occupier not being the owner of the land, also on such occupier. (3) If such person fails to comply with an order made under sub-section (1) the Collector an any person authorised by him in writing in this behalf shall execute the order in such manner as he considers expedient and may, - (a) if he is a Magistrate enforces the delivery of possession of the land in respect of which the order has been made to himself or. (b) If he is not a Magistrate, apply to a Magistrate, or, in Calcutta as defined in clause (ii) of section 5 of the Calcutta Municipal Act, 1951, to the Commissioner of Police and such Magistrate or Commissioner as the case may be, shall enforce the delivery of possession of such land to him".
(3.) The petitioners state that the petitioners are the owners of the premises in question. The petitioner became the owners by virtue of an award of the Commissioner of Partition in the Partition & Administration Suit in this Court resulting in a decree passed by this Court on the 29th July, 1977. The petitioners further state that the petitioners accepted the allotment made by the said Partition decree for the construction of the petitioners' dwelling house thereon and according to the petitioners, the said plot of land was and is highly developed being included in the Calcutta Improvement Trust within the Calcutta Improvement Trust Scheme (C.I.T. Scheme) No. 64. The petitioners have stated that the petitioners have paid the full betterment fees imposed on the said land by the Calcutta Improvement Trust and all other rates and taxes to the appropriate Authorities. The petitioners have further stated that the said entire plot of land was vacant with steel framed corrugated structure surrounded by brick wall with an iron gate for entry.;