ORDER There are four petitioners in this application. The subject matter of challenge here under Article 226 of the Constitution is the Order No. 36/76/II/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 requisitioning land under sub-s (1) of S.3 of the West Bengal Land (Requisition and Acquisition) Act, 1948. Order No. 36/76/11/78 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. 19754-L.A. dated 22.11.63 published in the Calcutta Gazette, Part I of the 19.12.63 at page 2521 read with Notification No. 19039-L.A./3A-32/7 Pt. dated 22.112.72 published in the Calcutta Gazette, Part I of the 11th January, 1973 at page 45 authorised me to exercise the power conferred by sub-s. (1) of S.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-s. (1) of S.3 of the West Bengal Land (Requisition and Acquisition) Act, 1948 (West Bengal Act 11 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 an 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. 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 the 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 or derange or for the creation of better living conditions in rural or 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 appears 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 authorized by the State Government in this behalf, may exercise within his jurisdiction the powers conferred by sub-s.(1) (2) An order under sub-s (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-s. (1) the Collector or any person authorized 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 S.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. (b) if he is not a Magistrate, apply to a Magistrate, or, in Calcutta as defined in clause (ii) of S.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 petitioners became the owners by virtue of an award of the Commissioner of Partition in the Partition & Administration Suit in this petitioners further state that the petitioner 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 a highly developed plot and has been further 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. 4. The challenge to the impugned order of requisition dated 22nd November, 1976 is mainly based on two grounds. It has been urged that no notice was given to the petitioners, who were the owners of the premises in question. Sub-section (2) of S.3 of the Act makes service of the notice in the prescribed manner on the owner mandatory and where the order of requisition relates to land in occupation of an occupier not being the owner of the land also on such occupier. Sub-section (2) of S.3 of the said Act, therefore, makes it manifest that an order of requisition must be served in any event on the owner and in addition requires that it should also be served on the occupier, if there is any occupier who is not the owner of the premises in question. It is only after either the owner or the occupier or both has or have failed to place the premises in question at the disposal of the government then and then only possession can be taken by the government. It is only after either the owner or the occupier or both has or have failed to place the premises in question at the disposal of the government then and then only possession can be taken by the government. The petitioners have asserted that the petitioners are the owners of the premises in question. There is no evidence of any credence or of any substance that the respondent authority before passing the impugned order made any enquiry to find out who was the owner of the premises in question. As a matter of fact n o evidence has been produced before me to rebut the effect of the decree of the Court upon which the petitioners have based their title of ownership. All that the respondents assert is that is was ‘reported’ to them that one Shir Balai Sen was the owner of the premises in question. It appear that a notice on Shi Balai Sen had been served prior to 22nd November, 1976 and he by his advocate’s letter had intimated to the requisitioning authorities that he was not the owner or even the occupier of the premises in question. The respondent authorities do not seem to have acted in any manner to make any enquiry or to verify the said fact. Therefore, I must proceed on the basis, as it is not seriously disputed by any cogent or reliable evidence by the respondents, that the petitioners are the owners of the premises in question. The petitioners admittedly had not been served with any notice. Therefore, it is manifest that there has been a breach of the mandatory provision of the requirement of sub.s. (2) of S.3 of the Act. On behalf of the respondents counsel for the State Government relied on two decisions, one being a decision of the Division Bench of this Court and the other being a decision of a learned single judge. The first decision upon which reliance was placed in the case of Narendra Nath Tripa placed on this Division Bench judgment in aid of the proposition that it was not necessary to serve notice on the owner of the premises in question. I am unable to accept this contention. The first decision upon which reliance was placed in the case of Narendra Nath Tripa placed on this Division Bench judgment in aid of the proposition that it was not necessary to serve notice on the owner of the premises in question. I am unable to accept this contention. Firstly, such a finding would be contrary to the mandatory provision of sub-s. (2) of S.3 of the Act and if the Division Bench judgment is properly read what the Division Bench wated to convey was that there was no requirement of giving any prior opportunity of making representation before an order of requisition was in fact passed by the requisitioning authority. The Division Bench in my opinion, was not concerned with the question whether before effectuating the order of requisition or taking possession pursuant thereto by the government there must be compliance with the mandatory requirement of sub.s.(2) of S.3 of the Act. That this was the position would be absolutely manifest from the observations of Mr. Justice Gupta appearing in paragraph 4 of the decision wherein Mr. Justice Gupta had observed as follows : “In any case, if it was open to the appellants to make a representation after they were served with notice under S.3(2) of the Act, they have not done so. They cannot therefore make a grievance now that they had no opportunity to show cause against the order of requisition. 5. It is manifest from the aforesaid observations that Mr. Justice Gupta proceeded on the basis that the owners would have an opportunity to make a representation after they were served with notice under S. 3(2) of the Act. Therefore, it would, in my opinion, be misreading the decision of the Division Bench to say that the Division Bench said that the mandatory provisions of sub-s. (2) of S.3 of the Act need not be complied with. What the Division Bench was concerned with was whether there was any scope for giving any opportunity of hearing any representation in consonance with the principles of natural justice before passing an order of requisition. This would also be clear from the supporting judgment of Mr. Justice S.K. Datta in the said decision. Reliance was also placed on the decision in the case of Basumati Bag v. Collector, Howrah, 78 CWN 29. There again Mr. This would also be clear from the supporting judgment of Mr. Justice S.K. Datta in the said decision. Reliance was also placed on the decision in the case of Basumati Bag v. Collector, Howrah, 78 CWN 29. There again Mr. Justice A.K. Sen was only concerned with whether a person was required to be given an opportunity to show cause before an order of requisition was made Therefore, in my opinion, these two decisions upon which reliance was placed, do not support the proposition that it was permissible to deviate from the mandatory provision of sub.s (2) of S.3 of the Act before taking possession by the government pursuant to an order of requisition. 6. The next ground upon which the challenge to the order was based was that the purpose for the requisition was not in consonance with the purpose indicated in the section. I have set out the Act as appears before. Now, the portion which I have underlined before for the people residing, in one book by some writing seems to suggest was omitted. But nothing was shown to me when and how that was omitted. But I find that Mr. Justice A.K. Sen had in the judgment of Basumati Bag v. Collector, Howrah, mentioned hereinbefore, set out on 30th July, 1973 the said section which reads as follows : “Section 3 (1) and (1A) of West Bengal Act provide as follows : 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 or drainage, or for the creation of better living conditions in rural or urban areas not being an industrial or other area excluded by the 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 fu8rther 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 authorized by the State Government in this behalf, may exercise within his jurisdiction the powers conferred by sub-s. (1)" 7. Now, in the impugned order all that was stated was that in the opinion of the requesting authority it was thought necessary for the purpose of creating better living condition in the area” to requisition the premises in question. It does not stipulate that it was for the people residing in such area nor does it stipulate that it was for construction or reconstruction respondent authorities it has also not been stated as to whether the premises in question was requisitioned either for the purpose of construction or reconstruction of dwelling places either for the people residing in such area or for any other area at all. Therefore, both from the impugned order and from the answer shown to the Rule Nisi it is apparent that the order was not for the purpose contemplated by the section. 8. On behalf of the respondents it was contended that the application was belated. It was further contended that the petitioners had come to know before possession was taken that such an order had been served on one Shri Balai Sen. It was, therefore, urged that for these reasons the petitioners were disentitled to ask for any relief under Article 226 of the Constitution. The petitioners had made representations to the government pointing out the breach of the mandatory provisions as early as possible as would be apparent from the averments made in paragraphs 11 and 12 of the petition. The facts that the representation was made and that the said representations have not been dealt with by the government were not controverted in the affidavit-in-opposition filed on behalf of the respondent in answer to the Rule Nisi furthermore, it is well-settled by the Supreme Court that after the Court has entertained an application under Article 226 and issued a Rule Nisi, normally it is inappropriate, if the party is otherwise entitled to, to decline to exercise its jurisdiction on the ground of belatedness. That is a factor which the Court should take into consideration at the time of the acceptance of the application or before issuance of the Rule Nisi. That is a factor which the Court should take into consideration at the time of the acceptance of the application or before issuance of the Rule Nisi. The very careless manner in which the government seems to have proceeded in this matter, that is to say without caring to enquire as to who the owner of the premises in question was and without dealing with the representation made after it was pointed out to the government that the owner had not been served, in my opinion, make the petitioners entitled to the relief that they have asked for in this application. 9. In the premises, in my opinion, therefore, there will be an order in terms of prayers (a), (b), (c), (d) and (e) of the petition and the Rule is made absolute to the extent indicated above. In view of the manner in which the government has acted, I direct the respondents to pay the costs of this application to the petitioners. Rule made absolute.