Calcutta High Court (Appellete Side)
In The Case P.V. George & Ors vs State Of Kerala & on 19 July, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
19.7.2011. W.P.L.R.T. No. 259 of 2003
Mr. Chandi Charan De
Mr. Sk. Md. Galib
.. for the State.
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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.
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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."
Though in the judgement there is no indication that the judgement will have prospective effect by applying the doctrine of prospective overruling and, as such, the judgement 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 & 3 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 judgement 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.
Despite such legal position about effect of said judgement 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 judgement pronounced shall not be illegal on that score, but merit of the said judgement 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 4 defect of his title to the office, judgements 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 judgement 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."
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.
Same view echoed by the Apex Court in a Constitution Bench judgement 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. 5
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.
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 judgement 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. Now the main matter is taken up for hearing. Heard learned Advocate appearing for the State.
None appears for the petitioner.
Earlier the matter was adjourned.
In view of very nature of the impugned order, this writ application could be disposed of exparte in absence of petitioner.
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The impugned order dated 28th August, 2001 reads such:-
"28.08.2001. - Affidavit of service filed by the learned lawyer for the applicant be kept with the record. Heard him and also Shri S. Samanta, the Government Representative. Seen record.
The applicant's grievance is that on 1.2.2000 the Block Land and Land Reforms Officer, Silda, district, Midnapore has issued a notice under Section 57 of the West Bengal Land Reforms Act in order to settle the dispute between the first party and the opposite party with respect to the scheduled lands. But this is not a notice by which he can take any legal action. It is alleged that record of rights have been prepared by the Revenue Officer in pursuance of this notice.
In the absence of any proof whatsoever, we are not prepared to accept the version that the Block Land & Land Reforms Officer has prepared the record of rights on the basis of the notice, annexure, 'A' to this application. This notice appears to us as one which relates to settlement of dispute between the two private parties in exercise of executive power. It is needless to say that on such notice correction of record of rights under the provisions of West Bengal Land Reforms Act cannot be made.
Accordingly, there is no merit in this application and it is disposed of with the above findings and observations....."
Having regard to the order, we are not finding any scope to have judicial review.
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The writ application stands dismissed. There will be no order as to costs.
(Pratap Kumar Ray, J.) I agree.
(Md. Abdul Ghani, J.) sks.