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 25th 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. Bow (1884) 6 All 468, there was a reference at p. 474 as follows:
In Khelut Chunder Ghose v. 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.
4. In Nand Ram v. Fakir Chand (1885) 7 All 523, at p. 528, there was a reference to the ruling in Rohilkhand and Kumaon Bank, Ltd. v. Bow (1884) 6 All 468, and it was also stated:
What the parties to a reference to arbitration intended is that the persons to whom the reference is made should meet and discuss together all the matters referred, and that the award should be the result of their united deliberations, etc.
5. In Thammiraju v. Bapiraju (1889) 12 Mad 113, there was a case where a suit was referred to arbitration, and objection was taken to the award on the ground that one of the arbitrators had not attended the meeting when witnesses were examined by the other arbitrator, and it was held that the award was invalid by reason of misconduct on the part of the arbitrator within the meaning of Section 521(a), Civil P.C. On behalf of the respondents Dr. Katju argued that it could not be shown from the record that any material error arose in the judgment owing to the absence of one of the assessors on the date when the evidence of these three witnesses was recorded. We consider however that the question is not one which might arise under Section 167,. Evidence Act, as to the improper admission or rejection of evidence and whether independently of that evidence there was sufficient evidence for the decision at which the Tribunal arrived. In our opinion the matter goes much deeper, and it is a question of whether the Tribunal had or had not jurisdiction. We consider that owing to the absence of one of the assessors on a date when evidence was heard the tribunal ceased to have jurisdiction and therefore the decree passed by the tribunal must be set aside. We accordingly set aside the decree of the Tribunal and we remand this application to the Tribunal for disposal according to law. The costs incurred before the Tribunal will abide the event. We allow the Secretary of State costs in this Court of this appeal. Refund of court-fee is allowed to the appellant. A cross-objection has been made. As we have set the decree aside on the ground of want of jurisdiction we need pass no orders on the cross-objection, and in the cross-objection each party will pay its own costs.