A writ petition is not maintainable by a person who is not a party to the proceedings before the Tribunal and has not exhausted his remedies by filing a review application before the Tribunal.

Ray, J.

1. A judgment 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 on 14th 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 there in 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 in stead 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 and Ors. v. State of Kerala and 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 v. State of Punjab reported in AIR 1967 SC 1643. 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 de facto 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 v. State of Andhra Pradesh reported in (1981) 3 SCC 132 held to this effect" a Judge, de facto, 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 de facto doctrine born of necessity and public policy to prevent needless confusion and needless mischief."

3. THE