Allahabad High CourtSecy. Of State vs Syed Anwar Husain And Anr. on 15 April, 1936Equivalent citations: AIR1936ALL525, AIR 1936 ALLAHABAD 525JUDGMENT
 

Ganga Nath, J.1. First Appeal No. 20 of 1933 has been heard and disposed of with this appeal as a common point is involved in both the appeals. Both the appeals are against the decisions of the Tribunal, Improvement Trust, Allahabad. In this appeal (No. 14 of 1933), house No. 8 situated in Chauk Allahabad was acquired by the Allahabad Improvement Trust in connexion with the Mirganj Open Area Scheme. The Land Acquisition Officer awarded Rs. 25,000 as compensation. On reference to the Tribunal it was raised by the Tribunal to Rs. 41,000. In the other case (First Appeal No. 20 of 1933) a house No. 72 in Mirganj was acquired for which the Land Acquisition Officer awarded Rs. 4,166 as compensation. It was raised to Rs. 7,000 by the Tribunal. During the course of the trial in both the cases one of the assessors, Mr. Ghazanfar-Ullah, was not present. In this case (Appeal No. 14 of 1933), Mr. Ghazanfar-Ullah was absent on 23rd and 26th August 1932. On these dates the cross-examination of the plaintiff and five other witnesses of the plaintiff was recorded in his absence. Mr. Ghazanfar-Ullah heard the cross-examination of only one witness, Abdul Hafiz on 15th August 1932. In the other case (Appeal No. 20 of 1933) , Mr. Ghazanfar-Ullah was absent on 23rd August 1932 when the evidence of two witnesses of the opposite party was recorded and arguments in the case were heard. Mr. Ghazanfar-Ullah did not hear the arguments in the case.2. Under Section 53, United Provinces Town Improvement Trust Act (Act No. 8 of 1919) if any question or dispute arises between the Trust and any person as to the sufficiency of any compensation paid or proposed to be paid to him under Sections 26, 30, 32, 48 or Section 101, the matter shall be determined by the Tribunal, if referred to it either by the Trust or by the claimant within a period of three months from the date on which the said person was informed of the decision of the Trust fixing the amount of compensation to be paid to him or of the rejection of his claim to compensation by the Trust, and the determination of the Tribunal shall be final. Under Section 1, Clause (6) "tribunal" means a tribunal constituted under Section 59. Under Section 59 the Tribunal shall consist of a President and two assessors. Section 59, Clause (6) lays down: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. It would appear from this clause that even in case of temporary absence in consequence of illness or any unavoidable cause the place of a member of the Tribunal cannot be left vacant, but it is to be filled up forthwith by the authority which appointed him. It is only under Clause (b), Section 64 of the Act, that the presence of the assessors may be dispensed with by the President. Clause (b) lays down:Questions relating to the determination of the persons to whom compensation is payable, or the apportionment of compensation, may be tried and decided in the absence of the assessors i£ the President of the Tribunal considers their presence unnecessary; and when so tried and decided, the decision of the President shall be deemed to be the decision of the Tribunal.4. Clause (a) which applies to the present case lays down:If there is any disagreement as to the measurement of land, or the amount of compensation or costs to be allowed, the opinion of the majority of the members of the Tribunal shall prevail.5. On comparing the language of Clauses (a) and (b) as well as bearing in mind the provisions of Clause (6), Section 59, it is clear that except in the case of Section 64, Clause (b), it is necessary that the case should be heard by all the members of the Tribunal.6. In this case, as already stated, on 23rd and 26th August 1932 Mr. Ghazanfar-Ullah was not present and consequently it cannot be said that there was any properly constituted Tribunal which heard the cases on these dates. It is not a matter of mere irregularity which may not affect the case, but it goes to the very root of the trial inasmuch as the trial was not before a properly constituted Tribunal, and consequently there was no trial as required under the Act. As already stated the decision of the Tribunal is final. It is, therefore, all the more necessary that all the rules and principles of procedure which apply to the proper and necessary conduct of trials should be strictly complied with. It is a fundamental principle that when an act is to be done by a Tribunal, it ought to be completed in the presence of all the members of the Tribunal as it is necessary that they should all act together. The decision should be the result of their united deliberation arrived at in the trial attended by all the members of the Tribunal. It is their duty to be present at all the meetings more especially during the examination of the witnesses and in the course of the arguments.7. It cannot be said that the irregularity or the defect in the trial was not such as might possibly have produced error or defect in the decision of the case upon the merits. As already stated, Mr. Ghazanfar-Ullah had not the advantage of observing the demeanour of the witnesses at the time of their cross-examination, and in case No. 20 of 1933 he had not even the advantage of hearing the arguments. If he had been present at the time of the cross-examination of the witnesses, it is quite possible he might have elicited matters in the cross examination of the witnesses which were left out or did not occur to the other members of the Tribunal who were present at the time the witnesses were examined. As observed by Viscount Sankey, L. C., in Powell and Wife v. Streatham Manor Nursing Home 1935 AC 243 at p. 250, witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. It being so, the mere fact that Mr. Ghazanfar-Ullah subsequently read the evidence recorded in his absence would not satisfy the requisites of a proper trial. It being so, it cannot be said that the decision of the case has not been prejudiced substantially. Though there is no case directly on the point, yet principles have been laid down in several cases which fully apply to the present case.InRohilkhand & Kumaon Bank, Ltd. v. Row(1884) 6 All 468, at p. 474, it was observed:In Khelut Chunder Ghosh v. Tara Churn. Koondoo (1866) 6 WR 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 conference and discussion of the points in difference, they have endeavoured to arrive at a unanimous judgment." Such a rule is clearly laid down with regard to arbitrators and it is equally, if not more especially, necessary to be acted upon by a Court consisting of two or more Judges, with power to decide matters of the greatest importance. But the question was even more fully considered by the game eminent authority in Mahomed Akil v. Asad-un-nissa Bibi (1868) 5 Wyman's Report 69, in which a Full Bench consisting of nine Judges concurred in the opinion that the point is not a mere technical objection, but is founded upon a fundamental principle essential to the due administration of justice, that every judicial act which is done by several Judges ought to be completed in the presence of the whole of them.8.InNand Ram v. Fakir Chand(1885) 7 All 523, which related to the question of the presence of arbitrators, it was observed on p. 527 by Mahmood, J.:In regard to the second point I agree with my brother Oldfield that the presence of all the arbitrators at all meetings, and above all at the last meeting, when the final act of arbitration is done, is essential to the validity of the award.9. In Thammiraju v. Bapiraju (1889) 12 Mad 113, which also relates to the presence of the arbitrators at all the meetings, it was observed:It certainly was the duty of each and every one of the arbitrators to be present at all the meetings, more especially during the examination of the witnesses. In Russel, on the power and duty of arbitrators, the result of the cases now on the point is given thus: " as joint arbitrators must all act, so they must all act together. They must each be present at every meeting, and the witnesses and the parties must be examined in the presence of them all; for the parties are entitled to have recourse to the arguments, experience, and judgment of each arbitrator at every stage of the proceedings brought to bear on the minds of his fellow Judges, so that by conference they shall mutually assist each other in arriving together at a just decision.10.InDasarath Rai v. Emperor1934 ALJ 376 three Honorary Magistrates constituted the Bench which had power to try a case, and the presence of two of them was necessary to form a quorum. On most of the hearings all the three were present, but on one of the hearings, when one of the Magistrates was absent, some witnesses were examined and cross-examined. He rejoined on the next day and then continued to be present all along and ultimately took part in delivering and signing the judgment. It was observed (vide p. 380):But where an Honorary Magistrate who has not heard the whole evidence, and has not been present throughout the proceedings takes part in the deliberation and joins the others in arriving at the final decision, there is every likelihood of his influencing his colleagues. By virtue of his absence on some of the material dates he became incompetent to form a true . opinion on the merits of the case and if he joins in the deliberations, there is likelihood of a failure of justice.11. It was urged by the learned Counsel for the respondents that the irregularity was acquiesced in by the Government Pleader. But it is not so as we find from the record that an objection was taken by the learned Government Pleader on 23rd August 1932, the first day on which Mr. Ghazanfar-Ullah was absent. In First Appeal No. 20 of 1933 the objection of the learned Government Pleader was that there was no validly constituted Tribunal on account of the absence of Mr. Ghazanfar-Ullah.12. We, therefore, find that there has been no trial in both these cases by a validly constituted Tribunal and the defect in the procedure vitiates the trial. It is, therefore, ordered that both the appeals be allowed with costs, decisions of the Tribunal be set aside and both the cases be sent back to the Tribunal for re-trial. The court-fee will be refunded. A cross-objection has been filed by the respondents in First Appeal No. 14 of 1933. As the appeal has been allowed and the award of the Tribunal has been set aside, the cross-objection also fails and is dismissed with costs.