IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: April 7, 2010 CWP No. 11553 of 2001 Gurcharan Singh and others …Petitioners Versus State of Punjab and others …Respondents CWP No. 11587 of 2001 Nachattar Singh and others …Petitioners Versus State of Punjab and others …Respondents CWP No. 2387 of 2010 Hamir Singh and others …Petitioners Versus Punjab State and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Hemant Sarin, Advocate, (in CWP Nos. 11553 & 11587 of 2001) Mr. Amit Aggarwal, Advocate, (in CWP No. 2387 of 2010) for the petitioner(s) Mr. Suvir Sehgal, Additional Advocate General, Punjab, for respondent Nos. 1 and 2. Mr. Chetan Mittal, Senior Advocate, with Mr. Keshav Kataria, Advocate, for respondent No. 3. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 M.M. KUMAR, J. This order shall dispose of CWP Nos. 11553 & 11587 of 2001 and 2387 of 2010 because similar question of law and facts have been raised. The challenge in CWP Nos. 11553 & 11587 of 2001 is to the common award dated 25.7.2000 (P-3) passed by the Land Acquisition Tribunal, Improvement Trust, Bhatinda (for brevity, ‘the Tribunal’) and subsequent orders dated 22.8.2000 & 6.12.2000(P-4 & P-5), passed by the President, Land Acquisition Tribunal, Bhatinda, fixing the market value of the property in dispute in the reference applications filed under Section 18 of the Land Acquisition Act, 1894 (for brevity, ‘the 1894 Act’). In CWP No. 2387 of 2010, the petitioners have challenged the award, dated 9.4.2001 (P-1), passed by the President of the Tribunal. 2. The facts as culled out from CWP Nos. 11553 & 11587 of 2001 are that the petitioners owned land within the municipal limits of Bhatinda. In 1976, the Bhatinda Improvement Trust, Bhatinda-respondent No. 3 (for brevity, ‘the Trust’) framed a development scheme under the provisions of the Punjab Town Improvement Act, 1922 (for brevity, ‘the Act’) and sought to acquire land to execute the said development scheme. Since the scheme could not be finalised it was dropped. In 1984, the Trust again framed a development scheme, namely, ‘Development Scheme for 16.44 Acres’, covering an area measuring 79 Bighas 3 Biswas within the municipal limits of Bhatinda. On 27.1.1984, notice under Section 36 of the Act was issued and on 28.1.1987, the said scheme was notified under Section 42 of the Act after obtaining sanction from the State Government. The land belonging to the petitioners was also covered in the said scheme. On 23.12.1988, the 2 C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 Land Acquisition Collector passed an award granting compensation at the rate of Rs. 85,662/- per acre for nehri and barani lands and Rs. 1,24,800/- per acre for gair mumkin lands falling in the Development Scheme. Separate amounts were awarded by him for structures, tubewells and trees etc.. 3. Being dis-satisfied by the award dated 23.12.1988, the petitioners and other land owners filed reference under Section 18 of the 1894 Act, claiming compensation at the rate of Rs. 2,000/- per square yard along with statutory benefits. All the land references were clubbed together and the matter was referred to the Tribunal, which was consisting of the President i.e. District Judge, Bhatinda and two Assessors, namely, District Transport Officer and one Mrs. Bimal Garg. It is claimed that the final arguments in the reference applications were heard on 7.6.2000 in the presence of all the three members of the Tribunal and the award was announced on 25.7.2000, awarding compensation at the rate of Rs. 1,60,000/- per acre for land upto 100 feet depth from the main metalled road and Rs. 1,05,000/- per acre for the remaining land (P-3). It has been submitted that the award dated 25.7.2000 (P-3) was not passed by all the members of the Tribunal, whereas it was made only by the President. One of the Assessors i.e. the District Transport Officer, was not a signatory to the award. The other Assessor, Mrs. Bimal Garg differed with the President with regard to the market value of the acquired land and in her view its market value should have been assessed at Rs. 150/- per square yard. It has also been pointed out that Shri A.P.S. Virk, the then District Transport Officer was one of the Assessors in whose presence the arguments were heard on 7.6.2000. But before announcement of the award he relinquished 3 C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 his charge as District Transport Officer and his work was thereafter performed by the Sub Divisional Magistrate, Bhatinda, namely, Shri Gurtej Singh. It is alleged that instead of hearing the matter afresh, the President of the Tribunal held some discussions with the SDM Bhatinda and thereafter the award was announced. The SDM Bhatinda acting as an Assessor signed the same without hearing any arguments. When this illegality was brought to the notice of the President of the Tribunal, he while exercising powers under Section 152 and 151 CPC, corrected the order passed on 25.7.2000 alongwith other orders. The revised order dated 25.7.2000 reads thus:- “25/7/2000 Present: Counsel for the parties The majority judgement has been written by myself and the District Transport Officer (Assessor) and the note below our judgement/award has been given by Mrs. Bimal Garg. It has been brought to my notice that Mr. Virk, District Transport Officer in whose presence the arguments were heard, has already been transferred from Bhatinda and he has left Bhatinda. Since the judgement has already been written, therefore, the present District Transport Officer may be called to sign the judgement of his predecessor. President L.A.T., Bhatinda 25/7/2000 Present: Counsel for the parties The judgement has been duly signed by myself and the Assessors and vide our award of even date, the applications/claim petitions have been accepted partly. Memo 4 C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 of costs be prepared accordingly. Files be consigned to the record room. July 25, 2000 President District Transport Officer, L.A.T., Bhatinda Bhatinda (Assessor) Mrs. Bimal Garg (Assessor) The previous orders dated 7/6/2000, 24/7/2000 and 25/7/2000 may be put in an envelope and be sealed and kept on record. Pronounced. August 22, 2000 Sd/- President Land Acquisition Tribunal (Improvement Trust) Bhatinda” 4. The petitioners have also placed on record a copy of the detailed order dated 22.8.2000 by which the zimni orders dated 7.6.2000, 24.7.2000 and 25.7.2000 have been modified in exercise of powers under Sections 152 and 151 CPC by the President of the Tribunal. Not only this, on 6.12.2000, the President of the Tribunal passed another order modifying the award dated 25.7.2000. It has been ordered that in para 36 of the award the words ‘100 feet’ be read as ‘100 yards’. This correction was with 5 C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 reference to the compensation for land falling up to a certain depth from the main metalled road i.e. Goniana Road (P-5). A perusal of the order shows that it has been signed only by the President of the Tribunal and not by other members/Assessors. The grievance of the petitioners is that the impugned award is unsustainable in the eyes of law because it has been announced only by the Tribunal and not by the other members. Moreover, one of the Assessors, namely, Mrs. Bimal Garg did not agree with the President regarding the market value of the acquired land and gave a dissenting note. The other Assessor never signed the original award. 5. CWP Nos. 11553 & 11587 of 2001 were admitted on 7.8.2001. However, no written statement either by respondent Nos. 1 and 2 or by the Trust has been filed. Only a short affidavit dated 20.9.2001 has been filed by the Joint Secretary, Department of Local Government, Punjab (in CWP No. 11587 of 2001) stating that there is no specific averment made in these petition, which concerns them and they have nothing to say in the matter. 6. It is pertinent to notice here that the only variance on facts in CWP No. 2387 of 2010 is that after passing of the award dated 23.12.1988 by the Land Acquisition Collector, the predecessor-in-interest of the petitioners, namely, Sher Singh filed a reference under Section 18 of the 1894 Act, namely, L.R. No. 3 of 7.12.2000, which was referred to the Tribunal on 23.11.2000. In this case, the President of the Tribunal has passed the award on 9.4.2001 by placing reliance on the already announced award dated 25.7.2000. From a plain reading of the award dated 9.4.2001 it is clear that the President of the Tribunal alone has heard the counsel for the claimant and without associating other members passed the award own his own. 6 C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 7. We have heard learned counsel for the parties at length and perused the paper books with their able assistance. The main thrust of argument in these petitions is that the awards dated 25.7.2000 and 9.4.2001 as well as orders dated 22.8.2000 & 6.12.2000, which have been passed by the President of the Tribunal are unsustainable in the eyes of law. It would be profitable to first refer to the relevant provisions of the Act. As per Section 2(5) of the Act, the expression ‘tribunal’ means a Tribunal constituted under Section 60. Section 58 of the Act states that the "Tribunal shall be constituted" as provided by Section 60, for the purpose of performing the functions of the Court in reference to the acquisition of land for the Trust, under the 1894 Act. Under Section 59 of the Act, for the purpose of acquiring land under the 1894 Act for the Trust, the Tribunal shall be deemed to be the Court. The Tribunal is clothed with power to summon and enforce the attendance of witnesses and to compel the production of documents as a civil court under CPC. Under sub-section (1) of Section 60 of the Act, the Tribunal beside President shall also have two Assessors. Sub-section (2) of Section 60 of the Act prescribes the qualifications of the President who shall be a person qualified to be appointed as a Judge of the High Court, who is to act as President. Under sub-section (3) of Section 60 of the Act the State Government shall be the appointing authority of the President and one assessor. The Municipal Committee concerned is required to appoint one assessor within two months of the date of requisition by the State Government to make such appointment and on its committing default the State Government is entitled to appoint the second assessor. The term of office of each member of the 7 C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 Tribunal has been kept for two years subject to reappointment. When any person ceases for any reason to be a member of the Tribunal or any member is temporarily absent due to illness or any unavoidable cause, the State Government or Municipal Committee, as the case may, is required to forthwith appoint a fit person to be a member in his place; with the same rider for default in appointment by the Municipal Committee on expiry of two months thereafter, the State Government would appoint such a member. 8. Section 65 of the Act prescribes the procedure as to how award of the Tribunal is to be determined and reads thus: “65. Award to tribunal how to be determined. – (1) For the purpose of determining the award to be made by the tribunal under the Land Acquisition Act, 1894 [1 of 1894] – (a) if there is any disagreement as to the measurement of land, or to the amount of compensation or costs to be allowed, the opinion of the majority of the members of the tribunal shall prevail; (b) notwithstanding anything contained in the foregoing clause, the decision on all questions of law and title and procedure shall rest solely with the president of the tribunal, and such questions may be tried and decided by the president in the absence of assessors unless the president considers their presence necessary. (c) The President of the Tribunal may record evidence on any matter in the absence of assessors unless he considers their presence necessary. 8 C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 (2) Every award of the tribunal, and every order made by the tribunal for the payment of money, shall be enforced by a Court of Small Causes, or if there be no such Court, by the Senior Sub-Judge within the local limits of whose jurisdiction it was made as if it were a decree of that Court. 9. From a bare perusal of Section 65 of the Act it is evident that under Section 65(1)(c), the President of the Tribunal may record evidence on any matters in the absence of assessors, unless he considers their presence necessary. On the questions of law and title and procedure, despite anything contained in clause (a) of sub-section (1) of Section 65 of the Act, the decision would rest solely, as stated in clause (b) with the President and he may try and decide the same in the absence of assessors unless he considers their presence necessary. If there is any disagreement as to the measurement of land or to the amount of compensation or cost to be allowed, the opinion of the majority of members of the Tribunal must prevail. 10. Under Section 59(d) of the Act, the award of a Tribunal is deemed to be the award of the court under the 1894 Act and considered to be final. Under Section 26 of the 1894 Act, every award is deemed to be a decree and the statement of the grounds of every such award, a judgment under Section 2(2) and Section 2(9) of CPC; and every award has to be in writing signed by the Judge specifying the amount awarded under clause (1) of sub-section (1) of Section 23 and also the amount, if any, respectively awarded under each of the other clauses of the same sub-section together with the grounds of awarding each of the said amounts. 11. By operation of sub-section (2) of Section 65 of the Act, the 9 C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 award of the Tribunal and every order made by the Tribunal for the payment of money, must be enforced by the Court of Small Causes or in its absence by the Senior Sub-Judge within local limits of whose jurisdiction it was made as if it were a decree of that court. 12. From a conjoint reading of the above provisions it comes out that the Tribunal has to consist of three members, namely, the President and two Assessors and each is co-existent with the others. The Tribunal is a civil Court and the President is the Presiding Judge of the Court. Being a judicial member, undoubtedly, he has been conferred with power to preside over the Tribunal, summon the witnesses, secure the evidence and decide on questions of law, title and procedure. If he considers necessary he may also do so in association with other members. Even in matters of procedure to a limited extent, namely, in summoning the witnesses who would be competent or necessary or material witnesses to unfold the measurement of the land or the value thereof, the views of the assessor-members may be relevant, germane and sometimes necessary, as being local persons. It is true that no qualifications have been prescribed for appointment of an assessor, while qualifications for the member-President stood prescribed. The reason appears to be that the assessor being a local member, obviously, having had personal knowledge of the local conditions of the land and its prevailing value, the legislature appears to have intended that opinion of men of common experience, perhaps, would be more appropriate to determine compensation. That would not elevate the position of the President to be pivotal and relegate the assessors to be adjuncts or ancillary to the President. If it were to be otherwise, the legislature would have employed the language that the President, with the assistance of the assessors, would 10 C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 determine the compensation or have the lands measured etc. etc. The power to decide on question of law, title and in some cases the procedure solely given to the President, is obviously for the reason that the President has had judicial or legal experience on questions relating to disputes of title and also conversant with the procedure in the Code of Civil Procedure. Section 59(c) amplifies that scope and gives power to the presiding member the status of Civil Judge to summon the witnesses, enforce their evidence and to compel production of the documents as is provided in CPC. 13. The award of the Tribunal has been designated to be the award of the court and the Tribunal is the court and each member is entitled to his own opinion in determination of the compensation or measurements of the land. The President as a Civil Judge is empowered to sign the award on behalf of the Tribunal. In case of difference of opinion, the majority opinion of the members is regarded as the decree of the Tribunal. The mandatory quorum, therefore, is three members. The President also is a member of the Tribunal and everyone of them is liable to be removed for any of the grounds enumerated in Section 10. Each member qua discharge of the functions is an independent member. Mere fact that the President is to record evidence, in the absence of the assessors, or that he is given power to preside over the Tribunal and to compel the presence of the witnesses or to secure the evidence would not per force minimise or undermine the composition of, continuance and functions of the assessors as members of the Tribunal. Temporary absence of a member including President, may entail, by implication, his removal and appointment of a substitute member, which would reinforce that in the discharge of the functions as a member, the presence and participation of each member of the Tribunal should be 11 C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 mandatory, unless his absence becomes unavoidable and beyond his control. The power to record evidence in the absence of the assessors does not clothe the President with the power to decide himself the question of compensation or measurement of land as sole member Tribunal. When the Tribunal consists of three members, the opinion has to be of the composite body, and not solely that of the President. The power vested with the President to decide questions of law, title and procedure would not result in undermining the position of assessor-members of the Tribunal with regard to other matters. The President need not necessarily be a local man. He may be a judicial officer grafted from the judicial service of the State; and the assessors, by implication, may be only local men having acquaintance with the prevailing prices of the land. The President must of necessity be either judicially trained person. When the Tribunal determines compensation or dispute as to the extent of the land acquired or of the quality of the land under acquisition, the decision is that of the Tribunal. In case of difference of opinion, the majority view would be the executable decree. In other words, it indicates that it is a three-member statutory body and does not consist of the Presiding Judge only. He is left with no option but has to associate the other members in determining the compensation of the acquired land for the trust or its nature or extent. Any other interpretation would be inconsistent with and derogatory to the scheme, purpose and intendment of the Act. The presence and participation of each member in the adjudication of the compensation or measurement or quality of land is of necessity, mandatory. The Tribunal must have the assistance of the counsel for the trust and of the claimant or/and counsel for the claimant, if any, 12 C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 engaged by the claimant in determining the compensation or for the measurement and quality of the land. It would, therefore be clear that all the three members should be present and should participate at the time of enquiry unless unavoidable, hear the matter on merits and the decision of the Tribunal, if not unanimous and if there be difference of opinion, be as per the majority. 14. The matter is no longer res integra. The question posed in the leading judgment on this subject, namely, Karnal Improvement Trust, Karnal v. Parkash Wanti, (1995) 5 SCC 159, is whether the function by the Tribunal as a body is mandatory or directory? It has been answered to be mandatory. 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 the 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. Though inconvenience and delay may occasion in some cases by holding 'the provisions to be mandatory, but that is an inescapable consequence. In the light of the aforesaid discussion, it must be held that 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. In para 22 of the judgment rendered in the case of Karnal Improvement Trust, Karnal (supra), their Lordships’ has observed as 13 C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 under:- “22……In that view, it must be held that since the award of the Tribunal is of the President of the Tribunal and not of that Tribunal, the consequence is that the award and decree are void. Therefore, it cannot be given effect. Since, we are interpreting law, we declare that any award made from this date by the member-President of the Tribunal only shall be void and it does not have the effect of unsettling the single member awards made and becoming final.” 15. In the case of Sohan Lal v. State of Haryana, AIR 1981 P&H 346, this Court has come to conclusion that the President alone could make the award under the Act. The reasoning given was that the President of the Tribunal holds pivotal position having administrative and judicial experience with the qualifications of eligibility for appointment as a Judge of the High Court. He presides over the proceedings. He has power to summon the witnesses, compel the production of documents; he is a Judge under the Act; he holds the proceedings as a civil court; he has administrative control over the staff; he has the exclusive power to decide questions of law and title and procedure on which the opinion of the President is final. The Assessors are ancillary and practically they are not members of the Tribunal stricto sensu. No qualifications have been prescribed as eligibility for their appointment as assessors. No quorum has been prescribed. They need to hold no previous experience either judicial or administrative. Their attending the enquiry is optional and in the event of their being present and participation their dissent may be relevant. The 14 C.W.P. Nos. 11553 & 11587 of 2001 and 2387 of 2010 operation of the statute must be so construed as to avoid inconvenience and hardship to the litigant