BUDHIA SWAIN Vs. GOPINATH DEB

JUDGEMENT

(1.) The respondent No. 1 is a deity seated at village Bishwa-nathpur in the District of Puri. On an application filed by the respondent No. 1 under Sections 6 and 7 of the Orissa Estates Abolition Act, 1951 (hereinafter 'the Act', for short), the Estate Abolition Collector-cum-Additional Tahsildar passed an order of settlement dated 2-4-1966 in favour of respondent No. 1 settling the lands covered by khata numbers 431 and 438 of village Bishwa-nathpur. Rent schedule was issued pursuant to the order of settlement and rent was realised from the respondent No. 1 from the date of settlement. There was no appeal preferred against the order dated 2-4-1966 and thus the order of settlement achieved a finality.

(2.) On 24-7-74 the appellants, 12 in number, who are residents of village Panibhandar, District Puri filed an application seeking review of the order of settlement dated 2-4-66. The only ground for review raised in the application was that the public notice of the claim preferred by the respondent No. 1 was not served in the locality as prescribed. The O. E. A. Collector purported to exercise the power of review under Section "151 CPC" having formed an opinion that the proclamation was not properly done in accordance with the law as the order-sheet of the case did not disclose the manner of proclamation. The respondent No. 1 preferred an appeal before the Additional District Magistrate (Land Records) Puri, who formed an opinion that the O. E. A. Collector was not expressly conferred with any power of review but the order could be justified as one of recalling of an earlier order which had occasioned failure of justice. If the mandatory provisions of Section 8-A (2) of the Act were not followed then the order dated 2-4-1966 was rendered a nullity. The learned ADM observed that the claim petition by respondent No. 1 was filed some time in 1963, i.e. beyond the prescribed period of six months. The learned ADM also observed that the claim preferred by the respondent No. 1 should have been treated as a lease case and not as a claim case. At the end, sustaining the setting aside of the order dated 2-4-1966 the learned ADM remanded the case to the O. E. A. Collector-cum-Additional Tahsildar for disposal afresh in the light of the observations made by him.

(3.) The respondent No. 1 preferred a petition under Article 226/227 of the Constitution before the High Court of Orissa. The petition has been allowed and the orders of O. E. A. Collector and the ADM have both been set aside by the High Court forming an opinion that the power to review as assumed by O. E. A. Collector did not exist and the circumstances of the case did not warrant the exercise of power to recall an earlier order passed by the O. E. A. Collector which was one passed within the jurisdiction of the O. E. A. Collector being set aside, moreso when the averments made in the application seeking review/recall did not go beyond alleging an irregularity merely or at the worst an illegality. The aggrieved appellants, the 12 villagers who had sought for review/recall, have filed this appeal by special leave impugning the order of the High Court.