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2011 DIGILAW 957 (CAL)

Radha Gobinda Jew Thakur v. State of West Bengol

2011-07-19

MD.ABDUL GHANI, PRATAP KUMAR RAY

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JUDGMENT Pratap Kumar Ray, J. A judgement has been delivered by Special Bench comprising of Three Judges of the Hon’ble High Court at Calcutta in W.P. No. 331 of 2009 on14th July, 2011 by passing the following order:- “On consideration of the entire materials on record, we, therefore, hold that unless the following defects in the Act are removed in the light of our observations, the Act as presently structured is unconstitutional for the reasons stated earlier. However, the Act may be made operational by making suitable amendments, as indicated below: A) Section 4(2) (b) of the Act should be deleted and should be substituted by a new provision for constitution of Selection Committee broadly on the following lines: (a) Chief Justice of High Court or his nominee- as Chairperson (with a right of casting vote); (b) A senior Judge of the High Court- as Member; (c) Secretary in the Ministry of Finance-as Member; and (d) Secretary in any of the Ministries-as Member. B) In Section 4(3) (c) (i) of the Act, the phrase “Joint Secretary” should be deleted and substituted by “Secretary or Additional Secretary” and the phrase “a specified Act” mentioned therein should be deleted and substituted by “all the specified Acts”. C) In Section 4 (3) (c) (ii) of the Act, the phrase “Joint Secretary” should be deleted and substituted by “Secretary or Additional Secretary” and the phrase “a specified Act” mentioned therein should be deleted and substituted by “all specified Acts.” D) The last proviso to Section 4 (13) of the Act should be deleted and instead thereof, suitable proviso should be incorporate by giving power of constitution of the larger Bench of the Tribunal to the Chairman of the same in case of difference of opinions between two or more benches with further stipulation that in such larger Bench, the number of Administrative Member must be less than that of Judicial Member. The writ- application is, thus, disposed of in terms of our present order.” 2. Though in the judgment there is no indication that the judgment will have prospective effect by applying the doctrine of prospective overruling and, as such, the judgment delivered will have a retrospective effect in view of the decision passed by the Apex Court in the case P.V. George & Ors. Vs. State of Kerala & Ors. reported in (2007) 3 SCC 557 . Vs. State of Kerala & Ors. reported in (2007) 3 SCC 557 . The doctrine of prospective overruling is a feature of American Jurisprudence and is an exception to the normal principle of law about effect of a judgment which normally is retrospective. The said doctrine has been applied by the Apex Court for the first time in the case L.C. Goloknath vs. State of Punjab reported in AIR 1967 SC 1643 . 3. Despite such legal position about effect of said judgment as quoted above, this writ application could be considered for our adjudication, which has been filed assailing the order passed by West Bengal Land Reforms and Tenancy Tribunal applying the defacto and de jure doctrine. The principle has been illustrated by the Apex Court in several cases by holding, inter alia, that even if the appointment of a Judge or a Presiding Officer or any Adjudicatory Forum stand cancelled or set aside, the decision or judgment pronounced shall not be illegal on that score, but merit of the said judgment could be decided by Court. The Three Judges Bench of the Apex Court in the case Gokaraju Rangarajan vs. State of Andhra Pradesh reported in (1981) 3 SCC 132 held to this effect “a Judge, defacto, is one who is not mere intruder or usufruct but one who held office under colour of lawful authority, even though his appointment is defective and may later be found to be so. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the power and function of the office, albeit unlawfully, have the same efficacy as judgment pronounced and acts done by a Judge de jure. Such is a defacto doctrine born of necessity and public policy to prevent needless confusion and needless mischief.” 4. Such is a defacto doctrine born of necessity and public policy to prevent needless confusion and needless mischief.” 4. The Apex Court in the said case considered the views of different High Courts as well as the English Court, namely, the case Pulin Behari vs. King Emperor reported in 16 CWN 1105, Emedisetti Ram Krishnaiah Sons vs. State of Andhra Pradesh reported in AIR 1967 Andhra Pradesh 193, P.S. Menon vs. State of Kerala reported in AIR 1970 Kerala 165 (F.B.), Milward vs. Thatcher reported in 100 E.R. 45, Sadding vs. Lorant reported in 10 E.R. 165 (H.L.), Re:- James (an insolvent) reported in 1977 (1) A.E.R. 364 (C.A.), State of Connectient vs. Carroll reported in (1871) 38 Conn.449, Re:- Albridge reported in (1893) 15 N.Z.L.R. 361 and Notton vs. Sheby County reported in 30 L.Ed. 178. 5. Same view echoed by the Apex Court in a Constitution Bench judgment in the case B.R. Kapur vs. State of Tamil Nadu reported in (2001) 7 SCC 231 , wherein appointment of a Chief Minister was quashed, but action taken by Chief Minister and Council of Ministers was declared as valid. 6. The said defacto principle has been applied by the Apex Court in the case State of Haryana Co-operative Transport reported in AIR 1977 SC 237 where it is held “acts of officers defacto cannot be questioned for lack of legal authority except by some direct proceeding”. The legal maxim that acts of officers defacto, cannot be allowed to be questioned collaterally, relied upon. 7. Having regard the said principle as discussed, we are of the view that the order impugned in the writ application could be decided under the anvil of judicial review by us sitting in the writ jurisdiction and the judgment dated 14th July, 2011 passed in W.P. No. 331 of 2009 though has not identified its force applying prospective overruling principle and, as such, effect could be considered as retrospective, the writ application is maintainable to test the legality and validity of the impugned order applying the “principle of defacto and de jure doctrine” as discussed above. 8. Now the main matter is taken up for hearing. 9. The impugned order of the learned Tribunal below dated 22nd January, 2003 reads such:- “22.1.2003. - The above noted two applications for restoration are allowed and T.A. Nos. 781 and 782 of 2001 are restored to their original files. 8. Now the main matter is taken up for hearing. 9. The impugned order of the learned Tribunal below dated 22nd January, 2003 reads such:- “22.1.2003. - The above noted two applications for restoration are allowed and T.A. Nos. 781 and 782 of 2001 are restored to their original files. Heard the ld. lawyers for he applicants as well as the ld. Government representative at length. In the instant writ petitions the notice dated 21.10. 1997 issued in connection with case No.13/Mid/1997 has been challenged on the ground that the lands of the deity, the applicant in T.A. No. 782 are going to be clubbed with those of the applicants in T.A. No. 781. However, on perusal of the impugned notice that has been issued to the individuals in connection with a proceeding for determination of their ceiling area under section 14T(3) of the Act, we find no indication anywhere in the said notice that the lands of the deity are going to be clubbed with the lands of the notices. Hence, the writ petitions were filed without any valid cause of action. From the report sent by the Distict Land and Land Reforms Officer, Paschim Medinipur, it appears that the said proceeding has been disposed of. The writ petitions therefore having lost their relevance have become infructuous also. The writ petitions are thus disposed of with the observation that a certified copy of the order, if applied for, by the applicants shall be supplied to them within one month from the date of receipt of such applications….” 10. On a bare reading of the impugned order, we are of the view that assailing the notice issued by concerned Competent Authority under Section 14T(3) of West Bengal Land Reforms Act, the original application was moved before learned Tribunal below. Leaned Tribunal held that the writ application which was a transfer application, became infructuous in view of report of District Land & Land Reforms Officer, Paschim Medinipore that the property of the deity was not clubbed together but a mere notice was issued for hearing. 11. In view of such finding, there is no scope of judicial review exercising power in writ jurisdiction. 12. The writ application accordingly stands dismissed. 13. There will be no order as to costs.