Nirmalendu Chakrabarty v. State of West Bengal — 1997 DIGILAW 73 (CAL)

JUDGMENT All these writ applications involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment. 2. The petitioners have filed these writ applications claiming inter alia for the following reliefs:- "a) to issue an order direction and/or writ in the nature of Mandamus commanding the respondents to act according to law, by not giving effect to the said impugned ex parte suo moto proceeding case No.1 of 1996 by the said A.S.O. & S.R O.-II Respondent No.5 and all orders passed in the said case and/or otherwise; b) to issue an order, direction and/or writ in the nature of Mandamus commanding the respondents to restore your petitioner said khatian No., plot No. 417 of khatian No. 372, plot No. 434 of khatian No. 727, plot Nos. 444 and 445 or khatian No. 442, plot No. 440 of khatian No. 371, plot No. 415 of khatian No. 189, plot No. 425 of khatian No. 664, plot No. 414 of khatian No. 230, plot No. 431 of khatian No. 276, plot No. 421 of khatian No. 617, plot Nos. 450 and 444 of khatian No. 592, plot No. 451 of khatian No. 541 of Mouza Boinchotola, J. L. No.4, P. S. Tiljala, District South 24-Parganas in its original position by declaring the said impugned proceedings and Section 47 of W. B. E. A. Act are ultra vires; c) to issue an order, direction and/or writ in the nature of prohibition prohibiting the respondents from acting the contravention of the provisions of the Bengal Tenancy Act, the West Bengal Estates Acquisition Act, Rules framed thereunder, the West Bengal Land Reforms Act and Rules framed thereunder as well as the provisions of Articles, 14, 21, 39 and 300A of the Constitution of India and principle of nature Justice; d) to issue an order direction and/or writ in the nature of certiorari, directing the respondents to certify the records of the case and to transmit those records to this Hon'ble Court within the time fixed, so that conscionable Justice may be done, by quashing the said impugned proceeding being case No. 1 of 1996 by A. S. O. and S. R. O.-II and all orders passed, steps taken in connection with and/or relating to the said impugned case; e) to issue an interim order of injunction restraining the respondents and/or their agents. Officers, or men and each one of them from proceeding any further and/or giving effect to the said impugned ex parte suo moto case No.1 of 1996 as well as all subsequent proceedings and also further restraining them from any way disturbing the peaceful possession of the said area of case plots of land of your petitioner as described in Paragraph 2(a) hereinbefore being plot No. 417 of khatian No. 372, plot No. 434 of khatian No. 272, plot Nos. 444 and 445 of khatian No. 442, plot No 440 of khatian No. 371, plot No. 415 of khatian No. 189, plot No. 414 of khatian No. 230, plot No. 431 of khatian No. 276, plot No. 421 of khatian No. 617, plot Nos. 450 and 444 of khatian No. 592, plot No. 451 of khatian No. 541 of Mouza Boinchotola, J. L. No.4, P. S. Tiljala, District South 24-Parganas by the way of taking possession forcibly by destroying the cultivation of crops and vegetable and/or distributing letting it out to others till the disposal of the said Rule. 3. On 5th December, 1970 the Conveyance Secretary of India Council conveyed about 200 Bigbas of land commonly known as 'Dhapa Square Mile' to the Justice of Peace for the town of Calcutta for conservancy of the City of Calcutta. 4. In or about the year 1880 the said Dhapa Square Mile was leased out to Bholanath Sen on the terms and conditions mentioned in the deed of lease. However, on 29th July, 1909 the then Corporation of Calcutta entered into an agreement of lease with one Bhabanath Sen for a term of 22 years on the terms and conditions stipulated therein including the right of the lessee (hereinafter referred to as the Sens) to set up tenants for agricultural. horticultural and piscicultural purposes and not to evict them without prior permission of the Corporation. In the Record of Rights the Corporation of Calcutta was shown to have intermediary interest where is the Sens were described as occupancy raiyats. A suit was filed by Corporation of Calcutta against Sens, which was marked as Title Suit No. 70 of 1933, praying for declaration that the Sens were not occupancy raiyats and also for a decree for their eviction. A suit was filed by Corporation of Calcutta against Sens, which was marked as Title Suit No. 70 of 1933, praying for declaration that the Sens were not occupancy raiyats and also for a decree for their eviction. The said Suit was decreed in part directing eviction only in respect of Khatian No. 168 and further declaring that they are not the occupancy raiyats. 5. On or about 12.2.1954 the West Bengal Estate Acquisition Act came into force. The Sens were recorded as 'Dakhali Madhya Satwa' whereas the Corporation of Calcutta was recorded as intermediary/proprietor. In the sub ordinate Khatians of khatian No. 184 the predecessor-in interest of the petitioners were shown as Raiyats Sthitiban. The Sens preferred an appeal against the judgment and decree passed in the aforementioned Title Suit No. 70 of 1933 ano in appeal the said Suit was compromised, in terms whereof a flesh case was granted in their favour for a period of 20 years with an option to renew the lease. As against the recording of the names of the predecessor-in-interest of the petitioners as Raiyats Sthitiban, Corporation of Calcutta filed objection on 7.5.1958 purported to be under Section 44(2a) of the said Act and the said objection was allowed by the Assistant Settlement Officer. One of the tenants preferred an appeal against the said order before the Tribunal which was registered as E.A. Appeal No. 44 of 1953 and by a judgment dated 20th November, 1963 the said appeal was allowed directing that the Record of Rights could not have been corrected except upon initiation of a proceeding under Section 45A of the West Bengal Estate Acquisition Act. 6. The Governor of West Benga1 promulgated an ordinance amending West Bengal Estate Acquisition Act on 15.6.1960 in terms whereof the local authorities became entitled to retain lands and a proviso was inserted in Section 6(1) (h) of the said Act. A writ petition was filed by the 'Sens' questioning the said amendment but in the meantime the said Ordinance was repealed and replaced by a legislative Act. In the said writ application it was held that in terms of the aforementioned amendment, the Corporation was entitled to retain the lands and bad in fact retained the lands in accordance with the said Act, but the Contractor or their sub-lessees continued to have their right as before. In the said writ application it was held that in terms of the aforementioned amendment, the Corporation was entitled to retain the lands and bad in fact retained the lands in accordance with the said Act, but the Contractor or their sub-lessees continued to have their right as before. On or about 17th April, 1962 a formal deed of lease was executed which was given retrospective effect from 1st April, 1936. On 8th February, 1965 the lease was renewed for 400 Bighas of land on the same terms and conditions as allegedly the crops grown in the lands in question were destroyed by the members of a political party allegedly at the of the then Mayor of Corporation of Calcutta. A writ petition was filed by the 'Sens' on 24th December, 1968. On 2nd January, 1970 the Corporation of Calcutta passed a resolution at 6 P.M. authorising the Corporation of Calcutta to take immediate possession of the said lands. On 3rd January, 1970 an application under Article 226 of the Constitution of India was made by the 'Sens' whereupon a rule nisi was issued and an Interim order restraining the Corporation from taking possession of the lands known as Dhapa Square Mile was passed. An appeal was preferred by the Corporation of Calcutta against the said order and a division bench of this Court comprising of Hon'ble the Chief Justice Sankar Prosad Mitra and Hon'ble Justice Sabyasachi Mukherjee (as His Lordship then was) in Appeal No. 23 of 1971 by a judgment and order dated 16th March, 1973 allowed the said appeal on a finding that the Corporation of Calcutta being a local authority and Sens having the right of occupancy in its ordinary sense, their rights had been extinguished in terms of the proviso appended to Section 6(1) (h) of the Act. The sail decision is reported in (1) AIR 1973 Cal 506 : 78 CWN 183, The Corporation of Calcutta and Ors. v. Dhirendra Nath Sen & Ors. Against the said judgment a special leave petition was preferred by 'Sens' In the Supreme Court of India which was registered as Civil Appeal No. 791 of 1973 and by consent of the parties an arbitrator was appointed and an a ward was made on 16th April, 1985 in terms whereof 'Sens' became entitled to compensation of Rs. 12,000,00/- without going into the merits of the respective cases, 7. 12,000,00/- without going into the merits of the respective cases, 7. It is stated that despite the said judgment land acquisition proceeding was initiated for construction of Eastern Metropolitan Bypass and in the said proceeding, the ownership of the petitioners and/or their predecessor-in-interest were, admitted whereupon, they were paid compensation. It is further stated that in the year 1988 some of the tenants got their names mutated and thus became direct tenants under the State. But despite the same the authorities of the Calcutta Municipal Corporation tried to take forcible possession of the said lands. A writ petition was filed and by an order dated 1st August, 1996 N. K. Mitra, J. restrained the respondents from taking possession and/or interfering with the petitioners' possession without starting appropriate proceedings. Against the said order Calcutta Municipal Corporation preferred' an appeal which was registered as F. M. A.T. No. 2737/96 wherein for the first time an order dated 7.8.1996 as contained in Annexure 'B' to the writ application was passed showing that the rights of all persons were eliminated. These writ applications have been filed inter alia questioning the aforementioned order dated 7.8.1996. By an order dated 26.11.96 the division bench varied the said order of injunction to the effect that the same shall continue for a fortnight from 26.11.96 and the matter was remitted to the trial Court for re-hearing with some observations. 8. Mr. A. P. Chatterjee, the learned Counsel appearing on behalf of the petitioners, Inter alia, submitted that the impugned order is ex facie bad in law Inasmuch as in view of the order of the Tribunal, no suo moto case could be initiated by Assistant Settlement Officer in purported exercise of power under Section 47 of the West Bengal Estate Acquisition Act read with Section 6(1) (h) thereof. The learned Counsel submits that In the event the Calcutta Municipal Corporation intended to retain the lands in question in exercise of its power conferred upon it under the proviso to Section 6(1) (h) of the said Act, the procedures laid down under Section 6(5) thereof, which is applicable mutatis mutandis, ought to have been followed and in absence thereof the proviso appended to Section 6(1) (h) could not have been taken recourse to. The learned Counsel contends that in any event, the State as also the Corporation in terms of Section 540(2) of the Calcutta Municipal Corporation Act, 1980 were bound to produce the records before this Court to show that the said lands have been retained by them. Mr. Chatterjee would contend that assuming that the Corporation had retained the lands, in view of the stipulations in the deeds of lease executed in the year 1909, they were bound to pay compensation. In any event, 'according to the learned Counsel, the names of the petitioners and/or their predecessor-in-interest having been recorded as raiyats Sthitiban, they have a right to occupy the said lands. Mr. Chatterjee has drawn my attention to the fact that the Assistant Settlement Officer although deleted the names of the petitioners, upon an appeal filed by them before the Tribunal, the said order was set aside and the Assistant Settlement Officer was directed to initiate a proceeding in terms of Section 45A or the West Bengal Estate Acquisition Act which order having not been complied with, the petitioners were to be treated as raiyats Sthitiban and in that view of the matter the purported order dated 7.8.1996 ail contained in Annexure ‘B’ to the writ petition must be held to be illegal, without jurisdiction and a nullity as thereby power under Section 47 read with Section 6(1)(h) bas been sought to be invoked without giving an opportunity of hearing to the petitioner and in total disregard of the order passed by the Tribunal. The learned Counsel submits that there exists a distinction between 'correction' and 'modification' as envisaged under Section 45A and Section 47 of the Act respectively. 9. According to the learned Counsel the Record of Rights could not be modified in the manner as has been sought to be done inasmuch as thereby the rights and status of the petitioners have been affected. In any event contends the learned Counsel, as the petitioners bad been paid compensation and their rights were acknowledged in the land acquisition proceedings while constructing E. M. By-pass Road and further in view of the fact that their title bad been admitted, the Calcutta Municipal Corporation is estopped and precluded from questioning the same. The learned Counsel contends that in case of this nature, the doctrine of estoppel by conduct shall apply. 10. Mr. The learned Counsel contends that in case of this nature, the doctrine of estoppel by conduct shall apply. 10. Mr. Anindya Mitra, the learned Counsel appearing on behalf of the Calcutta Municipal Corporation, on the other hand, submits that this writ application has been filed on a wholly misconceived notice inasmuch as the rights of the petitioners’ predecessor-in-interest have been fully considered and determined in the decision of this Court in The Corporation of Calcutta & Ors. v. Dhirendra Nath Sen & Ors. reported in 78 CWN 183 : AIR 1973 Cal 506 . 11. It has been contended that a perusal of the said decision would show that the Calcutta Municipal Corporation bad already taken possession of the lands in question on or about 3rd January, 1970 which was the subject matter of the writ petition filed by the 'Sens'. The learned Counsel submits that the appeal Court in the aforementioned decision has clearly held that the rights of the parties are governed by Section 6(1)(h) of the Act and, thus the division bench of this Com having held that the rights of the Sens stood extinguished by reason of the said provision, the question of the petitioners' deriving any right title and interest thereunder does not arise. It was further submitted that keeping in view the growth of the area, a decision was taken to shift the garbage dumping yard to further east and a further decision has been taken to settle a portion of the said land in favour of I. T C. Limited for setting up of five-star hotel. The said matter was a subject matter of writ petition before this Court which was filed by the Taj Group of the Hotels within was also a tendered and the said writ petition was dismissed by this bench by a judgment and order dated 13tb April, 1995. However, while an appeal was pending against the said judgment, a decision was taken by the Calcutta Municipal Corporation to settle other lands in favour of Taj Group of Hotels and on that term the appeal was disposed of on 1st February, 1995. It was stated that the Welcome Group of Hotels deposited a sum of Rs. However, while an appeal was pending against the said judgment, a decision was taken by the Calcutta Municipal Corporation to settle other lands in favour of Taj Group of Hotels and on that term the appeal was disposed of on 1st February, 1995. It was stated that the Welcome Group of Hotels deposited a sum of Rs. 13.13 crores with the C M C. and they had put up barbed wire fencing supported by sal bolla posts all around the plot of laud in July 1996 but then I. T. C. Hotels Ltd. complained that encroachers had broken a portion of fencing and were obstructing in taking up possession. It is stated that the petitioners having no right this writ petition should be dismissed. 12. My attention was further drawn to sub-para (xxxxvii) of Paragraph 17 of the affidavit-in-opposition which reads thus:- "In fact, it has come to the notice of the C. M. C. while doing fencing works, wire, some unauthorised persons are trying to encroach upon the land. Upon enquiry being made at the office of Block Land and Land Revenue Office, it was found that various unauthorised persons had got their names mentioned as raiyats in Records of Rights. This matter was brought to the notice of the appropriate authority who initiated proceeding for correction of the said erroneous records in view of the facts and circumstances, particularly, the facts of expiry of the lease given by C.M.C. in favour of Srish Chandra Sen and Others in respect of the lands in question. The said authority also took into consideration the effect of proviso to Section 6(1)(h) of the West Bengal Estate Acquisition Act inasmuch as the said section provides that lessee holding land under a local authority cannot acquire occupancy right in respect of the lease-hold lands. Considering the said facts and circumstances and the position in law, by an order dated 7th August, 1996 in the concerned authority held inter alia that the Record of Rights where in the names of the petitioners have been recorded as raiyats in respect of the lands in Bolnchotola Mouza were erroneous inasmuch as the said persons claimed their right through Srish Chandra Sen and Others who were held to have no right in respect of those lands. In consequence of such decision corrections have been made and the name of Calcutta Municipal Corporation has been recorded under the superior landlord viz. Government of West Bengl.” 13. It was submitted that the interest of the petitioner having been eliminated, taking recourse to the provision of Section 47 of the said Act cannot be said to be illegal inasmuch as all the under tenanted khatians merged with Khatian No. 183 i. e Khatian of the Calcutta Municipal Corporation. It was further submitted that in the Mouza in question leases had been granted for setting up various projects including the construction of Bengal Chamber of Commerce & Industries for setting up of a Craft Village and all such work will be held up unless the writ applications as presented are dismissed. 14. The West Bengal Estate Acquisition Act, 1953 was enacted to provide for the Acquisition of estates and rights of this intermediaries therein and certain rights of raiyats and under raiyats and all the rights of certain other persons in lands comprised in estates. By reason of Section 4 of the said Act upon a notification made in that regard all estates and rights of every intermediaries in each such estate situated in any district or part of a district specified in the notification was to vest In the State free from all in cumbrances. Section 5 deals with the effect of notification Section 6 enjoins a right upon the intermediary to retain certain lands situated therein with effect from the date of vesting. Clause (h) of sub-section (1) of Section 6 reads thus:- "Right of intermediary to retain certain lands. (1) Notwithstanding anything contained in Sections 4 and 5, an intermediary shall except in the cases mentioned in the proviso to sub-section (2) but subject to the other provisions of that sub• section, be entitled to retain with effect from the date of vesting ... ... ... (1) Notwithstanding anything contained in Sections 4 and 5, an intermediary shall except in the cases mentioned in the proviso to sub-section (2) but subject to the other provisions of that sub• section, be entitled to retain with effect from the date of vesting ... ... ... … (h) Where the intermediary is a local authority land held by such authority, notwithstanding such lend or any part thereof may have been let out by such authority; Provided that where any land which has been let out by any local authority is retained by such authority under this clause no person holding such land shall have any right to 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." 15. It is neither in doubt nor in dispute that the lands in question were granted in favour of the then Corporation of Calcutta by the Secretary of State, India in Council for dumping of garbage. The then Corporation of Calcutta thereafter acquired further adjoining lands including the lands situated in Mouza Hatgachhia where all the disputed lands situated. It is not necessary to reiterate the facts over again as the same bas been noticed hereinbefore and have also been stated in the judgment of this Court in The Corporation of Calcutta and Ors v. Dhirendra Nath Sen & Ors. reported in AIR 1973 Cal 506 Suffice it to say that by reason of an indenture dated 17th April, 1962 the Corporation of Calcutta granted fresh lease in favour of 'Sens' with effect from 1st April, 1936 for a period of 30 years expiring on March 31, 1966. The said lands were recorded in Khatian No 184 and the names of the petitioners did not figure in the Record of Rights which was finally published in the year 1967. However, in the revisional survey settlement Record of Rights the names of the petitioners appear. 16. The petitioners claimed themselves to be tenants under the 'Sens'. It is not disputed that the right of 'Sens' stood extinguished by reason of Section 6(1) (h) of the said Act as has been held by the division bench of this Court in 78 CWN 183. 16. The petitioners claimed themselves to be tenants under the 'Sens'. It is not disputed that the right of 'Sens' stood extinguished by reason of Section 6(1) (h) of the said Act as has been held by the division bench of this Court in 78 CWN 183. The division bench traced the history of the demises and came to the conclusion that 'Sens' being a service tenure holder, they were intermediaries and their right title and interest were not governed under the provisions of Bengal Tenancy Act. It further noticed that the Calcutta Municipal Corporation is a local authority and it has retained the lands in question. The division bench further held that the expressions 'occupation' and ‘occupancy’ are words which derived their meaning from different acceptances of the verb 'occupy', the former being the creative to express the State of holding or possessing any object, the latter to express the act of taking pos5ession of or keeping in possession. The division bench held: "It appears that the expression, 'right of occupancy' taken in its ordinary sense would mean the right of occupation and would cover the case of the lands held by the 'Sens'." The division bench clearly held that as in the said case proviso to ‘Section 6 (1) (h) applied, Sens had no right to continue in possession and was bound to deliver of the possession. 17. As regards the contention that the Calcutta Municipal Corporation could not have forcibly dispossessed Sens, it was held :- "Here the respondents have acted in seeking delivery by virtue of legislative provision of the proviso to Section 6(1) (h) of the West Bengal Estates Acquisition Act, 1953. In the case before the Supreme Court the action was passed merely on the executive decision. There was neither any legislative provision sanctioning executive decision nor any authority of any judicial tribunal authorising the action. Furthermore in the case before the Supreme Court it was found that the structures of the buildings were not properties of the State and State had no fight over the said structures of the dharmashala or the building. In the instant case the dispute relates to the land held by the Sens." 18. It was ultimately held that it remains admitted that the lands in question had been taken possession of by the Calcutta Municipal Corporation on 3rd January, 1970. 19. In the instant case the dispute relates to the land held by the Sens." 18. It was ultimately held that it remains admitted that the lands in question had been taken possession of by the Calcutta Municipal Corporation on 3rd January, 1970. 19. The findings aforementioned are findings of fact and the petitioners who are claiming themselves to be tenants under Sens, are bound by the said judgment. It is true that the matter went up to Supreme Court of India and ultimately the Sens were granted a compensation to the extent of Rs. 12,000,00/- by reason of an award made by A. C. Gupta, J. a former Judge of Supreme Court of India pursuant to an agreement entered into by the parties before the Hon'ble Supreme Court of India. It is not disputed that the said amount of compensation has been paid to Sens and in that view of the matter Sens and consequently the petitioners who claimed to have derived their right, title and interest pursuant thereto lost all their rights over the said lands. 20. The submission of Mr. Chatterjee to the effect that the right of retention was to be exercised by the Municipal Corporation in terms of sub-section (5) of Section 6 or that it was the bounden duty of the State and the Calcutta Municipal Corporation to produce the records to show that the Calcutta Municipal Corporation had in fact exercised its option to retain the land cannot be accepted in view of the fact that the dispute was adjudicated in the earlier lis. In any event, as it has been found by the division bench that the Calcutta Municipal Corporation in fact retained the said lands, the right of the petitioners did not subsist nor is it necessary at this stage either for the State or for the Calcutta Municipal Corporation to produce the records under the Provisions of Calcutta Municipal Corporation Act, 1980. Furthermore, in terms of Section 6(1)(h) of the Act the Calcutta Municipal Corporation became entitled to retain all the lands notwithstanding the fact that such lands or any part thereof may have been let out by such authority. 21. Furthermore, in terms of Section 6(1)(h) of the Act the Calcutta Municipal Corporation became entitled to retain all the lands notwithstanding the fact that such lands or any part thereof may have been let out by such authority. 21. Once they have retained such lands, the proviso appended to Clause (h) of sub-section (1) of Section 6 becomes attracted in terms whereof no person holding such land shall have any right of occupancy therein and every such person became bound to deliver possession of the land to the local authority required by it for its purposes. The names of the petitioners were recorded in the revisional Records of Rights which were published in the years 1953-54. The Tribunal passed a judgment in E. A. Appeal No. 44/1953 on 20. 11. 1963. It is true that the provisions of Section 6(1)(h) and the proviso appended thereto were inserted by West Bengal Act No. XVII of 1960. It appears that the said Appeal was filed only by one Surya prosad Singh. The Said judgment is not a judgment in rem but a judgment in personam. From a perusal of the judgment it appears that the learned Tribunal Judge in his order failed to take into consideration the effect of the proviso nor discussed any contention raised therein. 22. The Said judgment is not a judgment in rem but a judgment in personam. From a perusal of the judgment it appears that the learned Tribunal Judge in his order failed to take into consideration the effect of the proviso nor discussed any contention raised therein. 22. In any event, the subject matter of the said E. A. Appeal No. 44 of 1963 arose out of an objection filed by the then Corporation of Calcutta and a proceeding was initiated under Section 44(2a) of the West Bengal Estates Acquisition Act, which reads thus:- “An Officer specially empowered by the State Government may (on application within nine months, or of his own motion within (thirty-five years) from the date of final publication of the Record of-Rights or from the date of coming into force of the West Bengal Estates Acquisition (Second Amendment) Ordinance, 1957, whichever is later, revise an entry in the record finally published in accordance with the provisions of sub-section (2) after giving the persons interested an opportunity of being heard and after recording reasons therefore: Provided that nothing in the foregoing paragraph shall be deemed to empower such Officer to modify or cancel any order passed under Section 5A, while revising any entry: Provided further that no such Officer shall entertain any application under this sub-section of shall of his own motion take steps to revise any entry, if an appeal against an order passed by a Revenue Officer on any objection made under sub-section (1), has been filed before the commencement of the West Bengal Estates Acquisition (Second Amendment) Ordinance, 1957, before a Tribunal appointed for the purpose of this section, and notwithstanding anything in this section, any such appeal may continue and be heard and disposed of as if the West Bengal Estates Acquisition (Second Amendment) Ordinance, 1957, had not been promulgated).” 23. In view of the terminology used in Section 6(1) (h) and the proviso appended thereto, the question of the Sens or for that matter his tenants' deriving any right of occupancy within the meaning of Provision of Bengal Tenancy Act or otherwise did not arise and. thus it was not necessary to initiate such a proceeding. In view of the terminology used in Section 6(1) (h) and the proviso appended thereto, the question of the Sens or for that matter his tenants' deriving any right of occupancy within the meaning of Provision of Bengal Tenancy Act or otherwise did not arise and. thus it was not necessary to initiate such a proceeding. In any view of the matter when the dispute is being adjudicated in this Court, the respective rights of the parties have to be adjudicated by this Court without taking into consideration the said order as this Court is not bound thereby, Be that as it may, after the judgment passed by the division bench of this Court any decision made by the Tribunal Judge to the contrary cannot be given effect to and the petitioners cannot be said to have derived any right, title and interest pursuant thereto or in furtherance thereof. 24. In any event, it is well known, that an entry made in the Record of Rights does not confer any title and the presumption of correctness thereof is confined only to the possession of the parties as on the date of such recording. Such a presumption of possession also In this case stands rebutted in view of the fact that division bench of this Court has taken note of the fact that the Corporation had taken possession of the lands in question on 3.1.1970 despite pendency of a writ application. 25. In (2) Smt. Katya Bala Dasi and Anr. v. Nilmoni Pakhira and Ors. reported in AIR 1987 Cal 248 , this Court has held that a Record of Right is not a document of title in the following terms:- "Sub-section (4) of Section 44 of the West Bengal Estates Acquisition Act,1953 postulates that every entry in the Record of Rights finally published under sub-section (2) including an entry revised under sub section (2a), made under Section 42A or corrected under Section 45A shall, subject to any modification by an order on appeal under sub-section (3), be presumed to be correct until it is proved by evidence to be Incorrect and Rule 26 of the West Bengal Estates Acquisition Rules, 1954, has indicated the particulars to be included in a Record of Rights. On a reference to those provisions and the concerned Khatans, Mr. Roy Chowdhury contended, that the entries as made therein, were, thus, not authorised. On a reference to those provisions and the concerned Khatans, Mr. Roy Chowdhury contended, that the entries as made therein, were, thus, not authorised. While agreeing with the observations as above, we are also conscious of the fact that a Record of Right is not a document of title and the same is at best an evidence of possession." 26. In (3) State of Punjab & Ors. v. Sadhu Ram reported in JT 1996(7) SC 118, the apex Court observed:- "It is an undisputed fact that consequent upon the passing of the award under Section 11 and possession taken of the land. by operation of Section 16 of the Act, the right, title and interest of the erstwhile owner stood extinguished and the Government became absolute owner of the property free from all encumbrances Thereby, no one has nor claimed any right, title and interest in respect of the acquired land Before the possession could be taken, the Government have power under Section 48(1) of the Act to denotify the land. In that event, land is required to be surrendered to the erstwhile owners. That is not the case on the facts of this case. Under these circumstances, the Government having become the absolute owner of the property free from all encumbrances, unless the title is conferred on any person in accordance with a procedure known to law, no one can claim any title much less equitable title by remaining in possession. " 27. As the status of the petitioners is governed by a statute, the statute shall prevail particularly in view of the fact that Section 4 of the said Act contains a non-obstante clause. 28. It will bear repetition to state that after the amendments were effected in Section 6(1)(h) and the proviso was inserted in the year 1960, all persons claiming such lands by reason of tenancy, sub-tenancy or under tenancy could not have become a raiyat having occupancy right and were bound to deliver possession. 29. As the status of the parties is determined by the statute, necessary amendments could be made in the Record of Rights upon taking recourse to the provision of Section 47 of the Act. 30. 29. As the status of the parties is determined by the statute, necessary amendments could be made in the Record of Rights upon taking recourse to the provision of Section 47 of the Act. 30. It is now well known that principles of res judicata cannot be said to have any application whatsoever in a case where a pure question of law arises for consideration nor does it arise where a question of inherent lack of jurisdiction arises. In this view of the matter, I have no other option but to hold that the petitioners have no right title and interest and are bound to deliver possession to the Calcutta Municipal Corporation as and when it is required to do so. 31. In any event the petitioners could not have claimed a higher right than the 'Sens' and the right of 'Sens' having been extinguished, the rights of the petitioners automatically came to an end on 3rd January, 1970. 32. In view of the decision of the division bench, the assertion of the petitioners that they had been continuing in possession cannot be accepted. So far as the submission of Mr Chatterjee to the effect that persons similarly situated got their name mutated and/or obtained compensation in the land acquisition case is of little or no moment inasmuch as it is now well known that admission does not create any title. 33. Mr. Chatterjee and Mr. Maiti appearing on behalf of the petitioners have also raised a contention that the West Bengal Estate Acquisition Act bas no application in relation to the lands in question in view of the provisions contained in Section 1(2) thereof. The said argument was advanced on the ground that the land in question Jails within the Municipal Corporation area as described in Schedule 1 of the Calcutta Municipal Corporation Act, 1951. According to the learned Counsel the lands in question fall within Ward No. 58. 34. However, there appears to be some discrepancy in the description of Ward No. 58 in different books. The petitioners In Paragraphs 3, 30 and other paragraphs of the writ application categorically stated that the provisions of the West Bengal Estate Acquisition Act have application in the Instant case. 34. However, there appears to be some discrepancy in the description of Ward No. 58 in different books. The petitioners In Paragraphs 3, 30 and other paragraphs of the writ application categorically stated that the provisions of the West Bengal Estate Acquisition Act have application in the Instant case. No such stand having been taken by the writ petitioner in the writ petition and on the other hand in view of their categorical statement that the law governing the field in the instant case is the said Act, the question of entertaining the, aid contention does not arise. 35. In any event, even if the said Act bas no application, the lands evidently had not vested in the State of West Bengal and in that view of the matter too, the parties would be governed by the respective deeds of leases. 36. A further argument was sought to be advanced that some of the parties have taken direct settlement from the then Corporation of Calcutta. No such averment has been made in the writ application. The aforementioned argument was sought to be advanced on the basis of certain entries in the Record of Rights. The Record of Rights shows that although the lease was granted to Sens but some persons were in possession pursuant to degrees passed in their favour one in 1268 and another in 1864. As it has not been stated in the writ petition that any of the writ petitioner claimed their right, title and interest pursuant to -and in furtherance of any decree passed in their favour, no reliance thereupon can be placed for the purpose of granting them any relief. However, if any person claims any independent right, title and interest pursuant to or in furtherance of any decree, he may do so before an appropriate forum. 37. One of the decrees mentioned in the Record of Rights is alleged to have been passed in the 13th Century which is not possible as no Civil Court was established in India at that point of time. 38. Moreover, in the 13th Century or 19th Century the Corporation of Calcutta had not come into being. 37. One of the decrees mentioned in the Record of Rights is alleged to have been passed in the 13th Century which is not possible as no Civil Court was established in India at that point of time. 38. Moreover, in the 13th Century or 19th Century the Corporation of Calcutta had not come into being. Furthermore, if the said persons bad any independent right other than the right of settlement under the Sens, their names would not have been entered into subshatian of Khatian No. 184 which had admittedly been recorded in the name of the then Corporation of Calcutta. 39 It is true that normally a person cannot be evicted by show of force inasmuch as in India all persons have to be evicted in accordance with law but as has been indicated by the, division bench of this Court in Corporation of Calcutta's case (supra) that there exists certain exceptions to the said rule. In a given case even the Court may refuse to exercise its jurisdiction even if the petitioners were otherwise entitled thereto either on the ground of equity or in larger public interest. Reliance in this connection may be made to (4) In re: P. P. Raja Reddy reported in 1997(1) Calcutta Law Journal page 41. 40. It is now a well settled principles of law that for the purpose of obtaining any relief in the writ application, the petitioners are not only required to lay down the factual foundation but also must annex all appropriate documents in proof of their respective claims. As indicated hereinbefore, no plea has been taken by the petitioners claiming any independent right of settlement under the Corporation of Calcutta or the Calcutta Municipal Corporation and in that view of the matter, keeping in view the pleadings made in the writ applications, it must be held that the petitioners had acquired only derivative title from Sens and the title of Sens having been extinguished by efflux of time and in view of the judgment of this Court and the Supreme Court of India the title of the petitioners, if any, have also consequently been extinguished. 41. Mr Chatterjee submitted that in any event under the indenture of the year 1909, the petitioners are entitled to compensation. 41. Mr Chatterjee submitted that in any event under the indenture of the year 1909, the petitioners are entitled to compensation. The indenture of 1909 has been replaced by the indenture dated 17.4.1962 as contained in Annexure 'A' to the writ application in terms whereof Sens were granted lease for a period of 30 years with retrospective effect from 1936. The Records of Right upon which the petitioners themselves have relied upon clearly show that the right of the Sens had come to an end in the year 1966. 42. From, the said indenture of 1962 it further transpires that the right acquired by the Sens in terms of the aforementioned lease was for the purpose of fishing and they were also allowed to raise industrial units etc... In the case of Calcutta Municipal Corporation (supra) reported in AIR 1973 Cal 506 , this Court has clearly held that the Sens did not acquire any right of occupancy under the Bengal Tenancy Act. 43. The indenture of 1962 read as a whole would show that the lease granted in favour of the Sens was not for agricultural purposes and thus the question of the petitioners' acquiring any right of occupancy in terms of the provision of the Bengal Tenancy Act does not arise. 44. Having considered the stipulations made in the aforementioned indenture dated 17th April, 1962, I am satisfied that the purpose for grant of such being not agricultural, the, question of attracting the provision of Bengal Tenancy Act could not arise. 45. The principal purpose of the grant of said lease was to enable the lessee to carrying out the work of unloading refuse and silt wagons. The tenure of "Sens" was a service tenure. The lessees had also the right of fishing as also right to start establish and manufactories, hats, blazars, brick fields, factories and others business and industries subject to the restrictions stipulated therein. While construing an instrument the same has to be read in its entirety and, thus upon perusal of the said document it does not appear that any provision was made therein to induct agricultural tenants. The deed of the year 1909 upon which strong reliance has been placed by Mr. Chatterjee stood superceded by the aforementioned indenture dated 17.4.62. 'Sens' being bound, by the said document, the petitioners who are claiming derivative title' under them are also bound thereby. The deed of the year 1909 upon which strong reliance has been placed by Mr. Chatterjee stood superceded by the aforementioned indenture dated 17.4.62. 'Sens' being bound, by the said document, the petitioners who are claiming derivative title' under them are also bound thereby. In that view of the matter, the decision of this Court in Calcutta Municipal Corporation’s case (supra) shall be binding on the petitioners also. 46. So far as the submission of Mr. Chatterjee to the effect that the petitioners are entitled to compensation cannot be decided by this Court in absence of any prayer made in that regard. Moreover, such compensation has been paid to 'Sens'. If the petitioners are entitled to compensation amount in respect of their rights in accordance with law, they may pursue their alternative remedies. These applications are disposed of with the aforementioned directions and observations but without any order as to costs. Prayer for stay of operation of this judgment is considered and refused as the same is based upon decisions of this Court as also the Hon'ble Supreme Court of India. Xeroxed certified copy of this judgment, if applied for, urgently, be supplied within three days from the receipt of such file.