Bijoy Kr. Gupta v. State — 1997 DIGILAW 267 (CAL)

JUDGMENT The judgment of the Court was as follows :- Banerjee, J.: This is an appeal against the judgment dated February 17, 1997, passed in C. O. No. 19072 (W) of 1996, which was heard analogously with C. O. No. 11459 (W) of 1996 to C. O. No. 11461 (W) of 1996, and C. O. No. 11463 (W) of 1996 to C. O. No. 11468 (W) of 1996. 2. The learned Trial Judge, by the order dated February 17, 1997, dismissed the writ applications relying upon the Division Bench judgment of this Court in the case of (1) Corporation of Calcutta v. Dhirendra Nath Sen reported in 78 CWN 183: AIR 1973 Cal 506 , wherein a Division Bench found that the lease which was originally granted by the Calcutta Municipal Corporation in favour of Sri Dhirendra Nath Sen, had come to an end, and by virtue of the provisions of Section 6(1) (h) of the West Bengal Estates Acquisition Act, 1953, the Municipal Corporation had taken over possession in respect of the land in question. 3. The appellant/writ petitioners filed writ application alleging that they were raiyats in respect of the land in question and that their right was protected by the provisions of the West Bengal Estates Acquisition Act, 1953, (referred to as the "said Act of 1953"), and that it is a case of the appellant/writ petitioners that the names were recorded in the record of rights as raiyats, and that the AS O. & S R.O-II, by the order dated August 7, 1996, in a proceeding under Section 47 of the Act of 53, read with Section 6(1) (h) of the said Act, cancelled those entries made in favour of some of the appellant/writ petitioners. In the said order, dated August 7, 1996, passed by the A SO & S R O-II, it was stated that it appeared from the finally published record of rights of Mouza Boinchtala, P. S Tollygunge, that some persons were found recorded in Khatian No. 161 (Sabek 184), with the status of lessee under the Calcutta Corporation for a period of termed lease of 30 years commencing form 1936, but without any occupancy right, and that as it appears that the said khatian was held by Calcutta Corporation in terms of the provisions of Section 6(1) (h) of the said Act after the date of vesting under the superior landlord, Government of West Bengal. It was also observed that it appeared to the said Officer that the khanda khatian which was opened from the khatian of Calcutta Corporation In the name of some persons with the status of 'Dakhalkar' and with nothings of applicability of Section 6(1) (b) of the said Act, and it was presumed under the circumstantial evidences that the lessees, Srish Chandra Sen and Others, made out sub-lease to those persons; as it was found that the said recording was made Contrary to the provisions of law and in a manner which was not authorised by law, the said record of rights was required to be corrected as the lease had expired, and accordingly the record was corrected by operation of law and the names of various persons whose names were recorded contrary to law, were cancelled. The order that was passed by the Assistant Statement Officer & S. R. O-II, was passed in the background of the fact that the said land which is known as Dhapa Square Mile and the adjoining land was the land belonging to the Corporation of Calcutta and that under a deed of lease, made on April 17 1962, the same was granted in favour of the Sens (referred to as the lessees), solely for the purpose of dumping the garbage’s and/or for the purpose of sewerage and for the purpose of clearing the sewerage and drainage. The said land was the khas land of Calcutta Corporation which was given to the then Government of Bengal for the purpose of dumping of the garbages of the City of Calcutta, and that as Calcutta Corporation bad to face difficulties for the purpose of clearance of the garbages through vehicles, a contract was given to one Sri Bhabanath Sen with the specific condition that after filling up those lands with garbages, he will be at liberty to cultivate agricultural produce by himself or by some other person. But whenever the Calcutta Corporation will ask for return of the said land, the said parties will be liable to restore possession back to the Corporation and for that reason no compensatoin whatsoever would be paid by the Corporation, but would be paid by the contractor. This system was going on from time Immemorial. 4. It was specifically pointed out that in that land no raiyat or raiyat sthitiban dakhalkar should be settled or any tenant should be settled with any right. as if any such right is given that would hamper the clearance of the garbages from the City of Calcutta and dumping there. The lease granted in favour of the Sens was solely for this purpose and that we have to bear in mind that under the said lease and/or the agreement, there was no provision for granting any sub-lease or of creating any right on the third party in the said land as raiyat or otherwise as those lands were necessary for the purpose of discharging the functions of Calcutta Corporation. The Calcutta Corporation was charged with the statutory duty to keep the City of Calcutta clean and remove the garbages and for the purpose of dumping of the garbages, the Sens were granted lease in respect of the said land without any right to sub-lease and/or to settle anybody on the said land. 5. The lease agreement was to expire in the year 1986. There was a provision for extension of the lease for a period of 20 years, and it was specifically provided that in case the lease has to be granted to anybody else, offer bas to be made firstly to the Sens. 5. The lease agreement was to expire in the year 1986. There was a provision for extension of the lease for a period of 20 years, and it was specifically provided that in case the lease has to be granted to anybody else, offer bas to be made firstly to the Sens. But the possession of the said land Dhapa Square Mile, and the other adjacent lands, which were the original khas lands and were given on lease to the Senti, were taken over by the Calcutta Corporation on January 3, 1970., dispossessing the Sens. After the Calcutta Corporation took over possession of the said land, a writ application was filed by Dhirendra Nath Sen and Others, under Article 226 of the Constitution, alleging that the Calcutta Corporation could not take over forcible possession of the said land from the Sens. The said writ application was ultimately made absolute by P. K Banerjee, J.. (as His Lordship then was), by the order dated September 21, 1970. Against that order, the Corporation of Calcutta preferred an appeal and the said appeal was heard and disposed of by a Division Bench comprised of Sankar Prasad Mitra, C.J., and Sabyasachi Mukherjee, j., (as Their Lordships then were), and Their Lordships, after considering the history of the case and after tracing the titles of the parties and having regard to the provisions of Section 6(1) (h) of the West Bengal Estates Acquisition Act, ultimately came to the conclusion that the Corporation of Calcutta was entitled in law to take over possession of the said land after the expiry of the lease in terms of the provisions of Section 6 (1) (h) of the Act of 1953. Section 6(1)(h) of the said Act provides that “where the intermediary is a local authority, land held by such authority, notwithstanding such land or any part thereof may have been let out by such authority,” shall be allowed to be retained. The proviso to Clause (h) to Section 6(1) of the said Act provides is retained by such authority under this clause, or person holding such land shall have no right of occupancy therein and every such person shall be bound to deliver possession of the land to the local authority when required by it for its purposes. 6. The proviso to Clause (h) to Section 6(1) of the said Act provides is retained by such authority under this clause, or person holding such land shall have no right of occupancy therein and every such person shall be bound to deliver possession of the land to the local authority when required by it for its purposes. 6. The Division Bench, in the case of Calcutta Corporation v. Dhirendra Nath Sen reported in AIR 1973 Cal 506 , held that as the Sens had no right to remain in possession of the land after the notice had been given under the proviso to Section 6(1)(h) of the said Act, and in view of the fact that the land in question originally belonged to the appellants/Calcutta Corporation, and that had been given to the purchasers-in-interest, the Sens, under certain terms and conditions which in view of the proviso to the said section did not give the Sens any right to remain in possession, the Sens were not entitled to relief under Article 226 of the Constitution. Their Lordships of the Division Bench considered the facts and the law in this regard extensively, and that the learned Trial Judge mainly relied upon the said determination made by the Division Bench. 7. Mr. Somendra Chandera Bose, learned Counsel appearing on behalf of the Appellants, submitted that against the said order of the Division Bench in Calcutta Corporation v. Dhirendra Nath Sen (supra), an appeal was taken to the Supreme Court, and that a special leave petition was filed in the Supreme Court, and that in the Supreme Court, the parties had entered into an agreement under which the appeal was withdrawn from the Supreme Court on the terms and conditions that the possession taken by the Calcutta Corporation should remain with the Corporation and for the unexpired portion of the lease, compensation will be determined by an arbitrator and ultimately Sri Aloke Chandra Gupta was appointed as an arbitrator, and the said learned Arbitrator after hearing the parties and considering the materials produced before him, found that the average annual profit from the land was between rupees seventy to seventy One thousand approximately, and on that basis a sum of Rs. 12 lakhs was determined as the compensation for the unexpired period. The said award was given by the learned Arbitrator on. November 1, 1984. 12 lakhs was determined as the compensation for the unexpired period. The said award was given by the learned Arbitrator on. November 1, 1984. The money In terms of the said award was duly paid to the Sens and the Sens went out of the picture. 8. From the consent order passed by the Supreme Court and the award passed by the learned Arbitrator, it is cryatal clear that the judgment delivered by the Division Bench was not set aside and/or reversed, but only an amount of compensation was paid under an agreement for the unexpired portion of the lease, presumably on the ground that the lease agreement provided that in case lease is to be given to anybody else, the lease for another period of 20 years has to be offered to the Sens and that might have created some right in favour of the Sens and that is why the question of compensation cropped up, and accordingly the compensation was paid. Accordingly, we are unable to accept the contention of Mr. Somendra Chandra Bose that because the special leave petition was filed and the same was withdrawn under a consent order and the Sen, were paid a compensation of Rs. 12 lakhs by the Calcutta Corporation, the judgment of the Division Bench bad lost Its force and/or had been diluted. From the said judgment of the Division Bench, on which reliance was placed by the learned Trial Judge, It is crystal clear that the possession of the entire land in Dhapa Square' Mile and its adjacent area, including the lands which are the subject matter of this writ application and this appeal, were taken over by the Calcutta Municipal Corporation and the said property remained under the possession of the Calcutta Municipal Corporation. 9. At the time when the original property was leased out to the Sens in the year 1962, the said area "'as outside the municipal area of the Calcutta Municipal Corporation and accordingly the West Bengal Estates Acquisition Act, 1954, was applicable in respect of the lands situated there. But subsequently, in the year 1980, the Dhiipa Square Mile and/or the land which is the subject matter of the appeal, came under the territorial jurisdiction of Calcutta Municipal Corporation Act. But subsequently, in the year 1980, the Dhiipa Square Mile and/or the land which is the subject matter of the appeal, came under the territorial jurisdiction of Calcutta Municipal Corporation Act. Section 1(2) of the West Bengal Estates Acquisition Act, 1953, provides that "It extends to the whole of West Bengal except the areas described in Schedule I of the Calcutta Municipal Act, 1951, as deemed to have been amended under Section 594 of that Act," and now the land in question is situated in Ward No. 58 of the Calcutta Municipal Corporation Act. In view of the provisions of Section 1(2) of the Act of 1953, the provisions of West Bengal Estates Acquisition Act, 1953. have no manner of application. This point was Incidentally raised before the learned Trial Judge, but the learned Trial Judge did not enter into the question on the ground that the party proceeded on the footing that the said area was still governed by the provisions of the Estates Acquisition Act. There could not be any estoppel against the statute. If the particular area has gone outside the preview of West Bengal Estates Acquisition Act, 1953, that position has to be accepted and the parties by consent or otherwise cannot take a stand contrary to the statute and the Court also is bound to take into notice of the fact that since 1980-81, the said area was no longer under the purview of the Estates Acquisition Act, 1953. The effect thereof has to be considered in this appeal by us. 10. Mr. Bose further submitted that as the appellant/writ petitioners were all raiyats, their rights are protected under the provisions of the West Bengal Estates Acquisition Act, read with West Bengal Land Reforms Act their right could not be interfered with and/or be taken away by the State and/or by the Calcutta Municipal Authorities. 11. On the basis of these facts. Mr. Bose contended that firstly the order dated August 7, 1996. correcting the record of rights under Section 47 of the said Act was void as no opportunity and/or hearing was given to the persons concerned whose names were deleted from the record of rights Secondly, Mr. 11. On the basis of these facts. Mr. Bose contended that firstly the order dated August 7, 1996. correcting the record of rights under Section 47 of the said Act was void as no opportunity and/or hearing was given to the persons concerned whose names were deleted from the record of rights Secondly, Mr. Bose submitted that when the statute has created a right in favour of the appellant/writ petitioners, that right could not be taken away or interfered with and it is the duty on the part of the Court to protect that right. 12. In this appeal, we have to consider the effect of the operation of Section 1(2) of the Estates Acquisition Act by which the said area which was originally under the West Bengal Estates Acquisition Act, was no longer governed by the said Act and the legal effect of such a provision. Secondly, when initially the area was governed by the provisions of the west Bengal Es1ates Acquisition Act, what would be the effect after the said Act ceased to he in effect in respect of the said area, and thirdly, what is the scope and ambit of Section 6(1)(h) of the said Act? Fourthly, are the proceedings under Section 47 of the West Bengal Estates Acquisition Act applicable in the facts and circumstances of the case? Fifthly, can all order be passed connecting the record of rights by virtue of the provisions of Section 6(1)(h)- of the said Act without giving any opportunity to the persons whose names were recorded but deleted in such a summary manner? 13. Mr. Anindya Mitra, learned Additional Solicitor General appearing for the Calcutta Municipal Corporation, submitted that in view of the Division Bench judgment in the case of Calcutta Corporation v. Dhirendra Nath Sell (supra), there is no scope for the appellants to get any relief from the writ jurisdiction in view of the fact that the possession of the said land was taken over by the Calcutta Municipal Corporation on January 3, 1970, by operation of law, particularly in view of the provisions of Section 6(1)(h) of the said Act. The provisions of Section 6(1)(h) of the said Act confer power upon the Calcutta Corporation to get back the land as and when the same may be required by the Calcutta Corporation. The provisions of Section 6(1)(h) of the said Act confer power upon the Calcutta Corporation to get back the land as and when the same may be required by the Calcutta Corporation. The said provision makes it clear that nobody can have any occupancy right In respect of the said land and that each and every person who may be in possession of such land, was bound to deliver possession to the local authority, namely the Calcutta Corporation, when required by the Corporation for its own purpose. It is well settled principle by various decisions of the Supreme Court and of this Court that the possession of a property could not be taken by an executive save and except in accordance with law and/or by filing a suit or proceeding. But here, we find that specific prevision is made by the legislature conferring such a power to take possession directly by the Calcutta Corporation under this provision, and this power has been upheld in the Division Bench judgment in the case of Calcutta Corporation v. Dhirendra Nath Ser. (supra) and that the Supreme Court also did not have any occasion to disturb this finding of the Division Bench, and before the Supreme Court the Sens have relinquished and abandoned the right to get back possession or the property which was taken over by the Calcutta Corporation on January 3, 1970, but the Sens were interested in getting compensation for the unexpired period of lease, which they got, and the Calcutta Corporation paid Rs. 12 lakhs in terms of the award and there had been a decree in terms of the award. 14. Under such circumstances, it is too late in the day to contend that the occupancy right or the right to occupy the land in some other capacity could be asserted on the strength of any settlement made by the Sens. If the Sens had no authority and/or jurisdiction under the lease agreement, read with !he provisions of Section 6(1)(h) of the West Bengal Estates Acquisition Act, in that event it is a clear case where the appellant/writ petitioners cannot claim any right, title and interest in the said laud. The West Bengal Estates Acquisition Act and/or the West Bengal Land Reforms Act protects the right, but it does not create any right. The West Bengal Estates Acquisition Act and/or the West Bengal Land Reforms Act protects the right, but it does not create any right. If any land has been settled and any occupancy right has been given to a person under any settlement or otherwise, in that event the law comes to protect the Interest of the tillers of the soil. The Estates Acquisition Act has acquired the intermediary interest and the West Bengal Land Reforms Act is an Act which deals with the question of ceiling and retention of the land. But in order to get relief in a writ jurisdiction, it is well settled principle, and even in a suit, a party, in order to get a decree for the title or interest, has to prove his title on the strength of certain records and documents and/or settlement. 15. In this connection. the contention of Mr. Bose cannot he accepted in view of the fact that the contention of the appellants that they had acquired a right and that right is protected under the law could not be accepted in view of the fact that in case after the zamindaris were abolished, the intermediary interests were vested to the State, and after vesting of the intermediary interest, the intermediary in question, under Section 10(2) of the Act of 1953, had also to deliver the documents, registers, records and collection papers connected with the management of such estates and/or such interest, which are in his custody and furnishes statements in the prescribed form in respect of such estates or interest. In other words, if the intermediary interest or the zamindari interest vests, in that event after vesting the persons who are raiyats or under-raiyats or non-agricultural tenants under the intermediary, their names and particulars of their rights and documents and papers in respect of the management of the estate had to be handed over to the State. It was nowhere stated in the writ application that the writ petitioners were holding the land under the intermediaries. It was nowhere stated in the writ application that the writ petitioners were holding the land under the intermediaries. The expression “encumbrance” which has been defined in Section 2(h) of the Act of 1953, means in relation to estates and rights of intermediaries therein does not include the rights of a raiyat or of an under-raiyat or of a non-agricultural tenant ; and “intermediary”, which has been defined in Section 2(i), means a proprietor, tenure-holder, under-tenure-holder or any other intermediary above a raiyat or a non-agricultural tenant and includes a service tenure-holder and, in relation to mines and minerals, includes a leasee and a sub-lease. 16. In this case, no paper, no document and/or no document of title has been produced in order to establish that the appellant/writ petitioners were raiyats, under raiyats or non-agricultural tenants under the intermediaries or anybody else. In the instant case, originally the land was the khas land of the Calcutta Corporation which was given on lease to the Sens for the purpose of dumping the garbages after taking the same out of the City of Calcutta and that the said lease agreement did not expressly provide that the occupancy right could be granted by the Sens in favour of any party, and under the provisions of Section 6(1)(h) of the Act, it was made abundantly clear by the legislature that the Calcutta Corporation was entitled to get back the property as and when the same may be required by the Corporation and on that land mo occupancy right could be created in favour of any such person. In view of such mandate, the Sens bad no jurisdiction to create any right in favour of the parties and no one is entitled to claim any right contrary to the statute. Even assuming the names of the writ petitioner/opposite parties were in the record of rights which was corrected subsequently on 7.8.1996, that question has to be decided in the light of the law and the peculiar facts. Under the law, no One was entitled to claim any occupancy right on that land which belongs to the Calcutta Corporation. The Sens had no jurisdiction to settle and create any right in favour of any stranger. Under the law, no One was entitled to claim any occupancy right on that land which belongs to the Calcutta Corporation. The Sens had no jurisdiction to settle and create any right in favour of any stranger. If any stranger surreptitiously records his name in the record of rights in collusion with the officers of the Land & Land Revenue Department, that cannot defeat the purpose and object of the law and that cannot create any right. We have to bear is mind that record of rights does not create right but merely records rights. If the right was not there, in that event making entries does not create any right. 17. Record of rights means a record which is kept indicating the rights of the 'parties therein in respect of the land in villages and towns. These rights must be existing and lawful rights in respect of the and in question. Unfortunately, in this case, in the writ petition, the source of the right and/or the documents of title had not been disclosed, excepting pleading that their names were recorded in the record of rights and as such they had a right to the property. This is not correct position. 18. In the instant case, none of the appellant/writ petitioners could furnish any document showing that they bad a valid right in the property which was recorded in the record of rights. Record of rights does not or could not create any right merely by making any entry or by any officer which is contrary to law and particularly in the instant case, the order dated 7.8.1996, was passed in order to give effect to the legislative mandate that nobody can have any occupancy right or interest in the said land which belonged to Calcutta Municipal Corporation and that on the expiry of the lease of the Sens, the Sens went out of the picture, the possession of the said land was taken over by the Calcutta Corporation, and in terms of the award made pursuant to the order of the Supreme Court, the Calcutta Corporation paid Rs.12 lakhs to the Sens. This amount was paid to the Sens for the purpose of extinguishing their rights, and on consideration possession whereof was already taken over by Calcutta Corporation. It has not been shown how the Calcutta Corporation has been dispossessed from the said land. This amount was paid to the Sens for the purpose of extinguishing their rights, and on consideration possession whereof was already taken over by Calcutta Corporation. It has not been shown how the Calcutta Corporation has been dispossessed from the said land. The entries made surreptitiously in the record of rights by some interested parties in collusion with each other, do not and cannot create any right which can be recognized by any Court of law. 19. It is the case of the petitioners that they derived title from the Sens. It is well settled principle that a river cannot rise above its source. If the Sen, had no authority and/or jurisdiction to grant any sub-lease and/or to create any right in favour of any person, particularly in view of the fact that this land was earmarked for the purpose of dumping the garbages accumulated in the City of Calcutta and this land was not meant to be distributed and/or occupied in a clandestine manner, law cannot recognize any possession by any person which is contrary to law, namely contrary to the provisions of West Bengal Estates Acquisition Act and/or the Calcutta Corporation Act. 20. The Calcutta Corporation is a creature of the statute and the Sen, obtained lease from the Calcutta Corporation The Sens were bound by the terms and conditions of the lease, and admittedly the possession was taken over by the Calcutta Corporation and none of the appellant/writ petitioner could disclose to affidavit w hen they took over possession and since when they were is possession of the lands in question. 21. Admittedly, the appellant/writ petitioners are not in possession of the property and they do not claim to be in possession of the property. Their case is for restoration of the possession. The power of the writ Court to restore possession depends on various factors. 22. The effect of the change in law is that the Estates Acquisition Act is not applicable to the area in question and anybody who wants to claim any right, title and interest to the property, has to establish it under the ordinary law, namely under the Transfer of Property Act and/or any other law applicable in the City of Calcutta. The effect of the change in law is that the Estates Acquisition Act is not applicable to the area in question and anybody who wants to claim any right, title and interest to the property, has to establish it under the ordinary law, namely under the Transfer of Property Act and/or any other law applicable in the City of Calcutta. There is no bar to file a suit to adjudicate for declaration of right, title and interest if any person has such right, but that right has to be established on the basis of the documentary evidence or otherwise. Under the Estates Acquisition Act, there was a bar of the Civil Court. But now there is no such bar. 23. After the West Bengal Estates Acquisition Act ceased to apply in that part, in that event that party could not be allowed to take ad vantage of anything done under the Act which stood repealed, and that after the appeal of the said Act, a party has to establish his right on the basis of records and documents relating to title, and in this connection, the alleged entries made in the record of rights have no role to play. Record of rights is not a proof of title, but it only records the pre-existing right and such recording creates a reputable presumption. But when the Act ceases to apply solely on the basis of the entries in the record of rights recorded erroneously or otherwise one is not entitled to get any relief from any Court of law. In this case, it is clear that the purported recording of the names of the appellant/writ petitioners has been made in clear contravention of the provisions of Section 6(1)(h) of the said Act. It is well settled principle that anything done in clear contravention of the law is void and the order recording the names of the appellants has no legal foundation under the law. 24. In this connection, reference may be made to the decision of the Supreme Court in the case of (2) State of Punjab v Jagdip Singh reported in AIR 1964 SC 521 . In that case, some officiating Tahsildars in the State of Pepsu were confirmed as permanent Tahsildars, and that no post was then available for confirmation. Subsequently, on detection of this mistake, they were disconfirmed and reverted to the officiating post. In that case, some officiating Tahsildars in the State of Pepsu were confirmed as permanent Tahsildars, and that no post was then available for confirmation. Subsequently, on detection of this mistake, they were disconfirmed and reverted to the officiating post. In that connection, It was observed by the Supreme Court that the order of confirmation had no legal foundation under the rules as there was no vacancy in which confirmation could take place and that the said order confirming officiating Tahsildars as permanent Tahsildars should be held to be wholly void and consequently while disconfirming them or reverting the officiating Tahsildars, there was no question of giving the persons affected any opportunity of bearing. The principle laid down by the Supreme Court in that case, in our view is applicable in the facts and circumstances of this case. 25. In (3) M/s. Hindustan Steel Limited v. Smt. Kalyani Banerjee reported in AIR 1973 SC 408 . it was held that when the respondent in possession of the disputed land had raised a serious question as to the validity of the petitioners title, that the petitioners bad shown prima facie title, there is no conclusive evidence to that point that the High Court, in writ proceedings, cannot put the petitioners into possession by displacing the respondents. 26. In the instant case, the writ petitioners bad not been able even to show their prima jade title to the said land. They have not been able to show that any settlement has been given in writing or otherwise by any person or by the Sens or by the Calcutta Corporation. They have not been able to disclose any document to show that after the date of vesting that the Sens’ and/or the Calcutta Municipal Corporation’s right as intermediary extinguished and that they continued to be raiyats and/or under-raiyats. 27. In (4) Bokaro and Ramgar Limited v. State of Bihar reported in AIR 1963 SC 516 , it was held that before a party can complain of an infringement of his fundamental right to hold property, he must establish that be has a title to the property. If his title is in dispute and is subject of adjudication in proceedings, he cannot put forward any claim based on his title until as a result of that enquiry he is able to establish his title. If his title is in dispute and is subject of adjudication in proceedings, he cannot put forward any claim based on his title until as a result of that enquiry he is able to establish his title. It is only thereafter that the question whether his right in or to that property have been improperly or illegally infringed would arise. 28. In this case within the scope and ambit of the appeal, it is difficult to finally adjudicate the right, title and Interest or the question raised in this behalf, as this Court is exercising power under Article 226 of the Constitution, and that this Court is not deciding a case on a suit or and other proceeding. 29. In view of the several decisions of the Supreme Court, a party is not entitled to any relief unless he has legally enforceable right, title and interest in the property. Existence of not only a legal right, but a clear right is the condition precedent for exercising jurisdiction of the High Court under Article 226 of the Constitution. Existence of legal right and legal duty are conditions, precedent for exercising jurisdiction by the High Court under Article 226 of the Constitution. 30. Now, the question about the effect of the provisions of Section 1(2) of the West Bengal Estates Acquisition Act, by which the said Act ceased to be effective and operative after the same was included in the area under the Calcutta Municipal Corporation, is concerned, admittedly after the Act ceased to have any effect, the writ petitioners cannot get any benefit arising out of the West Bengal Estates Acquisition Act if the West Bengal Estates Acquisition Act does not apply to the said area now, in that event the claim of the writ petitioners that they are raiyats or under-raiyats, cannot be accepted. The concept of raiyat and under-raiyat and/or the tenure holder and/or the incumbrance ceased to have any effect in the facts and circumstances of this case after the said Act ceased to apply, in that area. It is not a case of repeal of an Act. Even if an Act is repealed, there are saving clauses. 31. In the instant case, there are no saving clauses, saving the rights of the parties under the Act. It is not a case of repeal of an Act. Even if an Act is repealed, there are saving clauses. 31. In the instant case, there are no saving clauses, saving the rights of the parties under the Act. But in view of the fact that the West Bengal Estates Acquisition Act had no manner of application to the area in question, accordingly the appellant/writ petitioners cannot claim any right, title and, Interest in the property on the strength of a recording made in the record of rights which was contrary to an-d inconsistent with and in violation of the provisions of the West Bengal Estates Acquisition Act When an Act of Parliament is repealed, It must be considered that had never existed. This is the general rule. 32. Tindal, C.J. stated in (5) Kay v. Goodwin, (1830) 6 Bing. 576, that the effect of repealing a stature is to obliterate it as completely from the records of the parliament as if it had never been passed ; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law. When the legislature intended that the area under the Calcutta Municipal Corporation should be left out of the jurisdiction of the West Bengal Estates Acquisition Act, none can claim any right or advantage on the strength of the Act which had no manner of application at the present moment and the Court is bound to give effect to the legislative intent. It is clear that in respect of the area under the Calcutta Municipal Corporation, the provisions of the West Bengal Estates Acquisition Act will have no manner of application. The concept of raiyat, under raiyat, intermediary, incumbrances, etc., had no manner of application in such a changed situation. The legislature did no intend the creation of raiyati interest and/or under-raiyati interest and/or non-agricultural tenancy interest in the area which is covered under the Corporation. 33. The concept of raiyat, under raiyat, intermediary, incumbrances, etc., had no manner of application in such a changed situation. The legislature did no intend the creation of raiyati interest and/or under-raiyati interest and/or non-agricultural tenancy interest in the area which is covered under the Corporation. 33. Accordingly, in view of such a changed situation, the writ application is round to fail because in the writ application the petitioners sought to enforce their right as raiyat or under-raiyat under the provisions of the West Bengal Estates Acquisition Act, which has now no manner of application, and this Court is bound to take into consideration of the change in the statutory position as it is the duty of the Court to give effect to the existing laws and not the laws that were in the past or what would be in future. The Court is concerned about an existing law and under the existing law, the writ petitioners cannot have any legally enforceable right against the Calcutta Municipal Corporation. 34. Accordingly, in that view of the matter, it was not necessary for the A. S. O. & S. R.O.-II to cancel those records as those records and/or the entries made therein could not be enforced before Court of law and the position is that the said law never existed and that the said law could not create any right and interest of the parties. In our view there was no need to pass any order on 7.8.1996 in view of the change of the law, which has been lost Sight of by all concerned, including the learned Trial Judge, and accordingly the question of giving opportunity and/or hearing to the appellant/petitioners before the said order was passed, does not and cannot arise at all of the entries in the record of rights have become void and inoperative, on the basis of such void thing, no right could be enforced in Court of law. A law does net cease to exist simply because it is ignored by the authorities concerned. The Court is to give effective law and to decide the matter in accordance with law. We do not find that any law is there which could protect the interest of the appellant/writ petitioners In respect of the said lands in question. 35. A law does net cease to exist simply because it is ignored by the authorities concerned. The Court is to give effective law and to decide the matter in accordance with law. We do not find that any law is there which could protect the interest of the appellant/writ petitioners In respect of the said lands in question. 35. Further, it appears that in 1970, the possession of the said lands was taken by the Corporation after paying a sum of Rs. 12 lakhs in terms of the compromise order and the award and that it cannot be said that the Calcutta Corporation paid Rs. 12 lakhs and obtained possession solely for the purpose of allowing all the persons to record their names in a clandestine manner without having any title or Interest in the property and as because a vast tract of land-which was used as a dumping ground of the garbages of the city of Calcutta, it would be contrary to public interest, to hold that simply by recording their names surreptitiously without giving any notice and/or hearing either to the Sens or to Calcutta Corporation, the right could be created. Under the provisions of Section 6(1) (h), it has been clearly laid down that there could not be any occupancy right in respect of the land hid by the Calcutta Corporation under Section 6(1)(b) of the said Act; in that event the claim of the writ petitioners is clearly contrary to law, and that no interest or right could be allowed to be crested, which is contrary to law and which is in clear violation of the provisions of law. 36. It is inconceivable that the Corporation had paid Rs 12 lakhs in terms of the award pursuant to the order of the Supreme Court not for the purpose of getting the land in respect of which possession was taken and they could not be dispossessed and that they cannot be said to have been dispossessed lawfully. A trespaeser and/or a person who has got his name recorded in the record of rights contrary to law and in a clandestine manner, his right could not be protected in a proceeding under Article 226 of the Constitution. After all, Writ Court Cannot adjudicate the disputed questions of right, title and interest of the properties and Writ Court always retains its discretion not to grant any remedy. After all, Writ Court Cannot adjudicate the disputed questions of right, title and interest of the properties and Writ Court always retains its discretion not to grant any remedy. Writ is not a matter of right or not a matter of course, but it is a discretionary remedy in which the Court can grant and refuse to grant depending upon the facts and circumstances of the case and accordingly in the facts and circumstances of the case, we are clearly of the view that this discretionary remedy under Article 226 of the Constitution is not available to the appellant/writ petitioners. 37. Accordingly, we do not find any merit in the appeal, and accordingly, the appeal is dismissed without any order as to costs. Prayer for stay made by the appellant is considered and rejected. Nand, J.: I agree.