SECY OF STATE Vs. MTNURAN BIBI

JUDGEMENT

(1.) This is a first appeal by the Secretary of State for India in Council against a decree of the Allahabad Improvement Trust Tribunal. The Tribunal had an application before them against the award of the then acquisition officer for compensation for certain premises. The amount of compensation was increased by the Tribunal by Rs. 4,600. The objection which has been taken is that the Tribunal was not properly constituted during the course of the trial of the case and therefore that its award was without jurisdiction. On pp. 12 and 13 of the paper book the order sheet for 25 August 1932, one of the dates of the hearing, is printed. This states that two members of the Tribunal, out of three, were present and one member, Hafiz Ghazanfarullah, was absent on that date. The Government Pleader took an objection that the case should not be taken up as one of the assessors was absent. The two members present however decided to proceed with the hearing of witnesses and on that date three witnesses were heard: one on behalf of the plaintiff and two on behalf of the defendant. On a later date the three members of the Tribunal were present and the case was argued and a judgment was given in which the three members of the Tribunal agreed. The point before us is whether the trial was one within the jurisdiction of the Court below when the Court acted contrary to the provisions of the Act on a certain date. The provisions of the United Provinces Town Improvement Act, Act 8 of 1919, are particularly clear on the point. For a compulsory acquisition there are several sections beginning with Section 56. In Section 57 it is provided that: A Tribunal shall be constituted, as provided in Section 59, for the purpose of performing the functions of the Court in reference to the acquisition of land for the Trust, under the Land Acquisition Act, 1894.

(2.) In Section 59 it is laid down that the Tribunal shall consist of a president and two assessors. In Sub-section (6) it is provided: When any person ceases for any reason to be a member of the Tribunal, or when any member is temporarily absent in consequence of illness or any unavoidable cause, the authority which appointed him shall forthwith appoint a fit person to be a member in his place.

(3.) Therefore the Act contemplates that when one member becomes unavoidably absent another member must be appointed in his place, and it is not possible for the Tribunal to proceed in the absence of a member. In Section 64 there is a provision in Sub-section (1) (b) for the president of the Tribunal to give a decision alone. But this is merely in certain matters, the determination of the persons to whom compensation is payable and the apportionment of compensation between those persons. It is not possible for the president to act alone for the purpose of determining the amount of compensation to be paid for acquisition. Reference has been made to Act 3 of 1920 by which the United Provinces Town Improvement Act of 1919 is modified, and it provides for an appeal on the ground of a substantial error or defect in the procedure provided by the Act which might possibly have produced error or defect in the decision of the case upon the merits. We do not consider however that the present case is one which merely amounts to a substantial error or defect in the procedure. On the contrary we consider that the question is whether the Tribunal had jurisdiction at all and if the Tribunal had no jurisdiction the appeal would lie under Section 3(2)(1), the decision being contrary to law. Reference has been made by learned advocate to certain rulings. In Rohilkhand and Kumaon Bank, Ltd. V/s. Bow (1884) 6 All 468, there was a reference at p. 474 as follows: In Khelut Chunder Ghose V/s. Tara Churn Koondoo Chowdhry (1866) 6 W R 269 , Peacock, C.J., made observations which apply in principle to the question before us: "I apprehend that all acts of a judicial nature to be performed by several persons ought to be performed when they are all present together, and that a final decision ought not to be pronounced in a case in which they differ, until by a conference and discussion of the points in difference they have endeavoured to arrive at a unanimous judgment.