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Judgment
This is an application for the issue of a writ of certiorari to quash the proceedings and the decision of the Estates Abolition Tribunal at Madurai
dated 22nd May 1950 in Revenue appeal No, 54 of 1950, The only ground on which the writ is sought is that only two members of the Tribunal
heard and disposed of the appeal filed by the petitioner u/s 9(4) of Madras Act XXVI of 1948 when the tribunal us constituted by the Government
consisted of three members. The petitioner is a mortgagee of a village in Ramnad taluk. The Settlement Officer Ramnad, acting u/s 9 of Madras
Act XXVI of 1948 held an enquiry and declared the village not to be an inam estate as defined in Section 2 (7) of the said Act. Against his
decision there was an appeal to the Estates Abolition Tribunal at Madurai by a ryot of the village. Two members of the Tribunal set arid heard the
appeal and by their judgment dated 22nd May 1950 reversed the decision of the Settlement Officer and declared the village to be an inam village.
The following are the provisions of Madras Act XXVI of 1943 material for disposal of the contention raised in this case. Section 2 (14) defines
Tribunal as ""a tribunal constituted u/s 8 and having jurisdiction"". Section 8 provides for the constitution of tribunals for certain of the purposes of the
Act, and runs thus:
The Government shall constitute as many tribunals as may be necessary for the purposes of this Act.
Each Tribunal shall consist of three members; one of them (who shall be its chairman) shall be a District Judge or an officer eligible to be
appointed as a District Judge, another shall be a Subordinate Judge or an officer eligible to be appointed as a Subordinate Judge, and the third
shall be a revenue Divisional Officer or an officer eligible to be appointed as a Revenue Divisional Officer.
Each Tribunal shall have such jurisdiction, and over such estates or parts thereof, as the Government may, by notification from time to time,
determine.
Every Tribunal shall have all the powers of a civil court to compel the attendance of witnesses and the production of documents.
u/s 9 (4) (a) any person deeming himself aggrieved by a decision of the settlement Officer under Sub-section (3) may appeal to the Tribunal.
Where any such appeal is preferred the Tribunal after notice to the interested parties, and after giving them a reasonable opportunity of being
heard, shall give its decision. (Section 9 (4) (b)). Besides the jurisdiction to decide appeals from the decision of the Settlement Officer u/s 9, the
Tribunal is also entrusted with several important duties and for carrying them out large powers have been conferred on the Tribunals. Section 67
empowers the Government to make rules to carry out the purposes of the Act, and in particular such rules may provide for, inter alia.
(b) the procedure to be followed by the Tribunals, special Tribunal, authorities and officers appointed, or having jurisdiction, under this Act.
Purporting to act in exercise of this power the following rules have been made and published by the Government in the following notification:
In exercise of the powers conferred by Section 67 (1) and (2) (b) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948,
Madras'' Act XXVI of 1948, His Excellency the Governor of Madras hereby makes the following rules in regard to the procedure to be followed
by the Tribunals constituted u/s 8 of that Act:
RULES
Not less than two members shall be necessary to constitute a sitting of a Tribunal.
All questions arising for the decision of a Tribunal, in any matter before it, shall be decided according to the opinion of the majority of the
members. If any matter has been heard by only two of the members and the members are divided in opinion as to the decision to be given the
matter shall be referred to the third member and decided according to the opinion which along with his constitute the opinion of the majority.
When the Chairman of a Tribunal is ill or absent for any other reason the Second Judicial Member of the Tribunal shall act as the Chairman.
It was contended on behalf of the petitioner that the above rules, in so far as they purport to authorise two members of a Tribunal to sit and
dispose of matters arising for the decision of the Tribunal are invalid as being ultra vires the provisions of the Act. In our opinion on a plain reading
of the language of the material sections this contention must prevail. u/s 9 (4) (b) it is the ""Tribunal"" which must hear and give its decision in an
appeal preferred to it u/s 9 (4) (a). The Tribunal, according to the definition, means a Tribunal constituted u/s 8 and u/s 8 (2) it is expressly
provided that each Tribunal shall consist of three members. When the substantive provision in the Act clearly lays down that the Tribunal shall
consist of three members it is not open for the Government to provide by a rule that a Tribunal may consist of less than three members.
We find support for this view in the observations which occur in the recent decision of the Supreme Court in -- ''the The United Commercial
Bank Ltd. Vs. Their Workmen, . That case dealt with the validity of an award made by an Industrial Tribunal under the Industrial Disputes Act,
1947. The Central Government constituted an Industrial Tribunal consisting of A, B and C. for deciding certain disputes and the Tribunal --
commenced its sittings in September 1949. On 23rd November 1949 the services of C one of the members of the Tribunal were required for
some other purpose and he accordingly ceased to take part in the sittings of the Tribunal. The remaining members continued to sit and hear the
disputes. In February 1950 C returned and began to sit again with the other two members and hear the further proceedings in the case. Some
awards were made by A and B before C returned and some awards were made after his return by all the three together. It was held by a majority
of their Lordships, that all the awards were void. It was held that the two remaining members were not a duly constituted Tribunal and the duty to
work and decide was. the joint responsibility of all the three members who originally constituted the Tribunal and the matter was one of complete
absence of jurisdiction. Section 7 of the Industrial Disputes Act provides inter alia that the Government may constitute one or more Industrial
Tribunals for the adjudication of industrial disputes and that a Tribunal shall consist of such number of members as the appropriate Government
thought fit, and where the Tribunal consists of two or more members one of them shall be appointed as the Chairman. Section 8 (1) runs thus:
If the services of the Chairman of a Board or the Chairman or other member of a court or Tribunal cease to be available at any time, the
appropriate Government shall in the case of a Chairman, and may in vhe case of any other member, appoint another independent person to fill the
vacancy, and the proceedings shall'' be continued before the Board, Court or Tribunal so reconstituted.
Their Lordships held that there was no appointment as contemplated by Section 8 (1) and, therefore, the Tribunal was not a duly constituted one
after C left the Tribunal and even after he joined again. Kania C. J. in dealing with the effect of the relevant provisions said at page 390:
Section 15 of the Act provides that when an. Industrial dispute has been referred to a Tribunal for adjudication, it shall held its proceedings
expeditiously and as soon as practicable and at the conclusion thereof submit its award to the appropriate Government. It is thus clear and indeed
it is not disputed that the Tribunal as a body should sit together and the award has to be the result of the joint deliberations of all members of the
Tribunal acting in a joint capacity.
Mukherjea J., though his Lordship was in the minority, observed as follows:
Having regard to the language of Section 7 which admittedly contemplates that the members of a Tribunal must act all together, it would, in my
opinion, be a perfectly legitimate view to take that if the Legislature did intend to make an exception to this rule, it would have done so in clear
terms instead of leaving it to be gathered inferentially from the provision of another section which itself is not couched in unambiguous language.
I am not impressed by the argument of Mr. De that a Tribunal is to be conceived of as an entity different from the members of which it is
composed and whatever changes might occur in the composition of the Tribunal, the identity of the Tribunal remains intact. A distinction
undoubtedly exists between the court and the Judge who presides over it, but if the constitution of the Court requires that it is to be composed of a
certain number of Judges, obviously a lesser number could not perform the functions of the Court,
and again,
It is quite true that a quasi-judicial tribunal enjoys greater flexibility and freedom from the strict rules oj law and procedure than an ordinary court
of law, but however much informality, and celerity might be considered to be desirable in regard to the proceedings or an industrial tribunal, it is
absolutely necessary that the Tribunal must be properly constituted in accordance with requirements of law before it is allowed to function at all.
The objection appears to us to be not merely technical. The three members of the Tribunal do not have the same qualifications. One is a superior
Judicial Officer of the status of a District Judge, the other of the status of a Subordinate Judge, whereas the third member is an officer of the
Revenue Department of the Government. Presumably, the legislature prescribed these different qualifications for the three members deliberately
and on purpose made the officer of the status of the District Judge the Chairman of the Tribunal. The intention of the Legislature appears to be
obvious that they wanted the Tribunal to consist of members possessing legal qualifications as well as an'' officer having knowledge of revenue
matters. The rule which allows two members of the tribunal to function as a tribunal would be inconsistent with the express intention of the
legislature contained in Section 8 (2), if, for example, in one contingency the two Judicial members alone sit without the assistance of the revenue
member. Equally inconsistent, it appears to us, would be the result when the Tribunal should sit and dispose of appeals without the Chairman, a
person who is more highly qualified than the other two members.
If analogy can be of some assistance, reference can be made to Section 51 (1) of the Act which provides for a special Tribunal. It says that any
person deeming himself aggrieved by any decision of the Tribunal under Sections 43 to 50 may appeal to a special Tribunal consisting of two
Judges of the High Court nominated from time to time by the Chief Justice in that behalf. Now, can the Government make a rule providing that one
of the two Judges of the High Court so nominated may sit alone and dispose of an appeal as the Special Tribunal? Obviously not.
It is no doubt true that when there is a right of appeal to the High Court all the Judges of the High Court do not sit and dispose of the appeal.
But that is because of a special provision in the Letters Patent under which the High Courts were constituted, namely, clause 36 which declared
that any function directed to be performed by the High Court in the exercise of its original or appellate jurisdiction may be performed by any Judge
or by any Division court appointed or constituted for"" such purpose.
We have no hesitation in holding that the rules empowering two members of the Tribunal to sit and dispose of matters which have to be decided
by the Tribunal under various provisions of the Act areXultra vires and invalid. The impugned order was therefore passed without jurisdiction and
must therefore be quashed. The appeal, of course, will have to be reheard by the Tribunal as constituted consisting of three members.
This ruling of ours will have the effect of rendering not only the order in question in this application invalid, but every similar order passed by two
members of the Tribunal. We think it unnecessary that there should be similar orders in each one of such cases. Those orders may all be treated as
passed without jurisdiction and therefore void, and instructions may be issued for the reposting of the appeals disposed of by two members for
fresh disposal according to law.