C.W.P.No.6118 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision : 7.8.2008 Jalandhar Improvement Trust, Jalandhar ....Petitioner Vs. Improvement Trust Tribunal, Jalandhar and others ....Respondents (with C.W.P. No.6119 of 2008, C.W.P. No.6120 of 2008, C.W.P. No.6121 of 2008, C.W.P. No.6122 of 2008, C.W.P. No.6123 of 2008, C.W.P. No.6124 of 2008, C.W.P. No.6125 of 2008, C.W.P. No.6126 of 2008, C.W.P. No.6127 of 2008, C.W.P. No.6128 of 2008, C.W.P. No.6129 of 2008, C.W.P. No.6130 of 2008, C.W.P. No.6131 of 2008, C.W.P. No.6132 of 2008, C.W.P. No.6133 of 2008, C.W.P. No.6134 of 2008, C.W.P. No.6135 of 2008, C.W.P. No.6136 of 2008, C.W.P. No.6137 of 2008, C.W.P. No.6138 of 2008, C.W.P. No.6139 of 2008, C.W.P. No.6140 of 2008, C.W.P. No.6141 of 2008, C.W.P. No.6142 of 2008, C.W.P. No.6143 of 2008, C.W.P. No.6144 of 2008, C.W.P. No.6145 of 2008, C.W.P. No.6146 of 2008, C.W.P. No.6147 of 2008, C.W.P. No.6148 of 2008, C.W.P. No.6149 of 2008, C.W.P. No.6150 of 2008, C.W.P. No.6151 of 2008, C.W.P. No.6366 of 2008, C.W.P. No.6367 of 2008, C.W.P. No.6368 of 2008, C.W.P. No.6369 of 2008, C.W.P. No.6370 of 2008, C.W.P. No.6371 of 2008, C.W.P. No.6372 of 2008, C.W.P. No.6373 of 2008, C.W.P. No.6374 of 2008, C.W.P. No.6375 of 2008, C.W.P. No.6376 of 2008, C.W.P. No.6377 of 2008, C.W.P. No.6378 of 2008, C.W.P. No.6379 of 2008, C.W.P. No.6380 of 2008, C.W.P. No.6381 of 2008, C.W.P. No.6382 of 2008, C.W.P. No.6383 of 2008, C.W.P. No.6384 of 2008, C.W.P. No.6385 of 2008, C.W.P. No.6386 of 2008, C.W.P. No.6387 of 2008, C.W.P. No.6388 of 2008, C.W.P. No.6389 of 2008, C.W.P. No.6390 of 2008, C.W.P. No.6391 of 2008, C.W.P. No.6392 of 2008, C.W.P. No.6393 of 2008, C.W.P. No.6394 of 2008, C.W.P. No.6395 of 2008, C.W.P. No.6396 of 2008, C.W.P. No.6397 of 2008, C.W.P.No.6118 of 2008 2 C.W.P.No.6398 of 2008, C.W.P.No.6399 of 2008, C.W.P. No.6400 of 2008, C.W.P.No.6401 of 2008, C.W.P.No.6402 of 2008, C.W.P.No.6403 of 2008, C.W.P.No.6404 of 2008, C.W.P.No.6405 of 2008, C.W.P.No.6406 of 2008, C.W.P. No.6407 of 2008, C.W.P.No.6408 of 2008, C.W.P.No.6409 of 2008, C.W.P.No.6410 of 2008, C.W.P.No.6411 of 2008, C.W.P.No.6412 of 2008, C.W.P.No.6413 of 2008, C.W.P. No.6414 of 2008, C.W.P.No.9818 of 2007, C.W.P.No.9884 of 2007, C.W.P.No.10178 of 2007, C.W.P.No.10213 of 2007, C.W.P.No.10245 of 2007, C.W.P.No.10633 of 2007, C.W.P. No.10634 of 2007, C.W.P. No.10635 of 2007, C.W.P. No.10636 of 2007, C.W.P.No.10637 of 2007, C.W.P. No.10638 of 2007, C.W.P.No.10639 of 2007, C.W.P. No.10640 of 2007, C.W.P.No. 10641 of 2007, C.W.P. No.10642 of 2007 and also C.W.P.No.17412 of 2007). CORAM: HON'BLE MR.JUSTICE UMA NATH SINGH. HON'BLE MR.JUSTICE L.N. MITTAL. * * * Present: Mr.Salil Sagar, Senior Advocate, with Mr.Tribuwan S.Sarup, Advocate, for the petitioner. Mr. Puneet Jindal, Advocate Mr. Balram Singh, Advocate for the landlord(s). Mr.Sandeep Arora, Advocate Mr. Surinder Sharma, Advocate Mr. Amit Jhanji, Advocate Mr. Ashwani Talwar, Advocate for the respondent(s). ... UMA NATH SINGH, J. This order shall dispose of all other connected writ petitions including those, which have been filed by the land owners for enhancement of compensation, which are also listed before us. Further, all these matters arise out of the same acquisition notification issued under the Punjab Town Improvement Act, 1922 (for short 'the Act'). C.W.P.No.6118 of 2008 3 Learned senior counsel for petitioner-Improvement Trust made the one and only submission that the tribunal which rendered this impugned award was not properly constituted according to the mandate of Section 60 of the Act as it consisted of the President alone and none else like assessors etc. Learned senior counsel based his submission on the ratio of a judgment of Hon'ble the Apex Court reported in (1995) 5 SCC 159 (Karnal Improvement Trust, Karnal vs. Parkash Wanti (Smt.) (Dead) and another) , and contended that any award passed by a Tribunal, which is not properly constituted, would be void ab-initio, thus, the impugned award at the very outset needs to be set aside and consequently, these cases are to be relegated to a competent tribunal constituted in terms of Section 60 of the Act for a fresh adjudication. Having regard to this settled principal of law as propounded in the aforesaid judgment, learned counsel for the respondents have nothing much to say in favour of the impugned award which, prima-facie, appears to suffer from Coram non-judice having been passed beyond the pale of competence. We have considered the rival submissions of learned counsel for parties and perused the Award as also the Act. We have also carefully read the judgment under reference in Karnal Improvement Trust case (supra). This is clearly held in the judgment that under this Act, an award of the Tribunal is designated to be the award of a Court, therefore, the Tribunal under this Act is a Court. Hence, each member of the Tribunal would be entitled to have his own opinion in the determination of quantum of compensation or measurements of land under acquisition. The Chairperson of the Tribunal as a Civil Judge is empowered to sign the award on behalf of C.W.P.No.6118 of 2008 4 the Tribunal. In case of difference of opinion, the opinion of the majority members of the Tribunal shall be drafted as the decree of the Tribunal. Mandatory quorum for the constitution of a Tribunal is three and the award of the Tribunal is a decree of a Civil Court. President of the Tribunal is also a member and each one of them is liable to be removed on any of the grounds enumerated in the Act. More importantly, each member of the tribunal is to function independently. Mere fact that the President of the Tribunal will record evidence, in absence of assessors, or that he has power to preside over the Tribunal and compel presence of witnesses, or secure evidence, does not perforce minimise or undermine the composition of, as also the continuance and functions of assessors as the members of Tribunal. Temporary absence of a member including the President may entail, by implication, his removal and appointment of a substitute member. Thus, it would reinforce the principle that in the discharge of the functions as a member, the presence and participation of each member of the Tribunal would be mandatory, unless his absence becomes unavoidable and it is beyond his control. This is also held that when the Tribunal consists of three members, the opinion has to be of the composite body, and not of the President alone. Powers vested in the President to decide the questions of law and title or procedure do not undermine the position of assessor members of the Tribunal,nor of any other related matters. When the Tribunal determines the compensation or a dispute as to the extent and quality of land under acquisition, this is always the decision of Tribunal. In case of difference of opinion, the majority view would prevail and that would be the executable decree. It is,thus, clear that the Tribunal is a three member statutory body and it does not consist of the Presiding Judge C.W.P.No.6118 of 2008 5 alone. This is also clear that all the three members of Tribunal should be present and participate at the time of enquiry unless unavoidable and also hear the matter on merits. Decision of the Tribunal, if not unanimous due to some cleavage of opinion, would be as per the majority. Thus, an award and decree passed by the Tribunal under the Act is of the entire Tribunal and not of the Presiding Officer alone, even though he signs the award on behalf of the Tribunal. In case of difference of opinion, the opinion of each member is a judgment but the enforceable award and decree would be the view of the majority. Hon'ble the Apex Court has distinguished the ratio of judgment of Privy Council reported in AIR 1917 Privy Council 142 (Montreal Street Railway Company versus Normandin), in the Karnal Improvement Trust case (supra). In Privy Council's judgment, it was held as: “When the provisions of a statute relate to the performance of a public duty and the case is such, that to hold null and void, acts done in neglect of this duty would work serious general inconvenience or injustice to persons, who have no control over those entrusted with the duty, and at the same time, would not promote the main object of the Legislature, such provisions are to be held to be directory only, the neglect of them though punishable not affecting the validity of the acts done.” In the Karnal Improvement Trust case, Hon'ble the Apex Court has taken a different view as: “The discharge of the duties under the Act are quasi-judicial. The power to determine compensation and other questions involves adjudication. The discharge of the functions by the Tribunal being quasi-judicial cannot be regarded as ministerial. When the statute directs are Tribunal consisting of three members to determine compensation etc. and designates the award as judgment and decree of a civil court, it cannot be held that the quasi judicial functions of the Tribunal would be considered as directory, defeating the very purpose of the Act. C.W.P.No.6118 of 2008 6 Though inconvenience and delay may occasion in some cases by holding the provisions to be mandatory, but that is an inescapable consequence. The adjudication by the three- member Tribunal is imperative and mandatory. Determination of the compensation in disregard thereof renders the adjudication void, invalid and inoperative.” As the constitution of Tribunal suffered from coram non-judice and the provisions of Section 60 of the Act have been held to be mandatory and not directory in nature, unlike the ratio of judgment in Montreal Street Railway Company's case rendered by Privy Council in a similar situation, the inescapable consequence would be to set aside the impugned award and remit all these cases to a properly constituted Tribunal in terms of Section 60 of the Act. Thus, we set aside the impugned award and remit all these cases for a fresh consideration. In case the Tribunal has not been constituted in terms of Section 60, we direct the State Government to constitute such a Tribunal within a period of two months from the date of receiving a copy of this order. The Tribunal shall decide and dispose of all these matters within a period of four months thereafter. All these writ petitions are, thus, disposed of with the aforesaid directions. Concerned Assistant Registrar to place photocopies of this order in the files of concerned cases. (UMA NATH SINGH) JUDGE (L.N.MITTAL) 7.8.2008 JUDGE monika/pk/mohinder Whether this judgment be referred to Reporter or not? YES/NO