TMI Blog1982 (10) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 9 of the O.E.A. Act and the order became final. On 24-7-74 opposite party Nos. 1 to 12 who are residents of village Panibhandar. P. S. Satyabadi district Puri filed an application for review of the order of settlement dated 2-4-66 on the sole ground that the public notice of the claim had not been served at the locality in accordance with the manner prescribed by law. Opposite party No. 14, in the purported exercise of the powers under Section 151, C.P.C. reviewed the order of settlement on 27-9-74 and by his final order dated 2-2-76 directed that the lands should be recorded in the Anabadi Khata of the village and should not be settled in the name of the ex-intermediary. 3. The petitioner preferred an appeal against the order dated 2-2-76 which was passed after review. The appeal was registered as O.E.A. Appeal No. 5/76. O.P. No. 15 allowed the appeal, set aside the order in Annexure 1 and remanded the case to O.P. No. 14 for a fresh disposal in accordance with the lease principles. He found that there was no express power of review conferred on the O.E.A. Collector under the O.E.A. Act; but the action of O.P. No. 14 in passing the order dated 2-2-76 could be int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al statutes have no inherent power--vide (1971) 37 Cut LT 897: (1972 Tax LR. 1735) (State of Orissa v. Member Sales Tax; Tribunal). The learned O. E. A. Collector (O. P. No. 14) could not exercise inherent powers under Section 151, C. P. Code to review his own order. Section 38-A of the Orissa Estates Abolition Act which was inserted by Act 21 of 1973 came into force on 2-10-1973. The application for review was filed on 23-7-74. Section 38-A authorises the O. E. A. Collector to review his decision or order within one year from the dates of the decision or order on the ground that there has been a clerical or arithmetical mistake in the course of any proceeding under the Act. None of the grounds on , which the O. E. A. Collector may exercise the power of review under Section 38-A exists in the present case. He could not review his order on the grounds not falling, within the ambit of Section 38-A. Moreover the power of review could not be exercised after expiry of the period of one year prescribed by Section 38-A. . ..... 8. The next question for consideration is whether the order dated 2-4-66 could be recalled or ignored on the ground that it was a nullity. It is well settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the subject-matter of the dispute. It cannot be said that he could not have seisin of the case when the subject-matter belongs to the nature of its jurisdiction. 11. Assuming that the O. E. A. Collector should not have entertained the claim under Sections 6 and 7 of the Act on the ground of bar of limitation, we are clearly of the opinion that the order of settlement was not a nullity inasmuch as he was competent as regards the nature of the claim to exercise jurisdiction. In the review application the opposite parties 1 to 12 did not raise any objection that the application under Sections 6 and 7 was barred by limitation. The O. E. A. Collector while granting the review did not also record a finding that the application was barred by limitation. The question was for the first time raised before the appellate authority. It was, however, contended by the petitioner before the appellate authority that the application was filed in time; but it was kept pending till 30-10-63. The appellate authority however found that the application was barred by limitation. On the basis of that finding it is urged in this writ application that the claim under Sections 6 and 7 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution carried from a decision of the Tribunal under the Orissa Estates Abolition Act. It was laid down in that decision that the provision of Section 8-A (2), first proviso, is mandatory and it is not open to the Collector to omit any process of publication. It was further held that if all the requirements of Section 8-A (2) are not fulfilled, the Collector cannot proceed further. That decision was considered by a Full Bench in the case of Krupasindhu Misra v. Gobind Chandra Misra (1980) 50 Cut LT 393 : (AIR 1980 Orissa 199 and it was held that the requirement of the notice stipulated in the proviso is in conformity with the natural justice and is a mandatory one. But the manner and form of notice are directory. If the requirement of the proviso has been substantially complied with the order of settlement would not call for any interference. In the review application dated 27-7-74 the opp. parties 1 to 12 challenged the order of settlement on the sole ground that notice had not been served at the locality in accordance with the manner prescribed by law. They did not plead non-service of the notice but raised objection only with regard to the manner of service of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e normal inference would be that the procedure prescribed by law was duly followed in making the settlement under Sections 6 and 7 of the Act. 13. In the appeal which was preferred against the order dated 2-2-76. O P. No. 15 held that chough the O. P. No. 14 had no power of review yet his action could be interpreted as a case of recalling the order which on account of failure to follow the mandatory provisions of Section 8-A (2) was rendered a nullity. For this proposition he relied on the decision reported in (1971) 2 CWR 326 (supra). The question raised in that case was whether the Collector had jurisdiction to recall his own order on the principle of ex debito justitiae and the power can be viewed as equivalent to the ordinary power of review. The Court in para 14 of the judgment held that it was not necessary to deal with this contention and the question was left open. As we have indicated earlier the page containing the service return of the proclamation was missing from the record. No evidence was adduced to show that there was no proclamation of the public notice at the locality. The objection was raised only with regard to the manner of service of proclamation and the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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