Madhabi Dutta & Ors. vs State Of Odisha & Ors.

Sashikanta Mishra, J.

The petitioners in the present writ application question the correctness of order dated 13.04.2021 passed by the Addl. Tahasildar, Puri in Misc. Case No.1 of 2021, whereby the order passed by his predecessor on 30.06.2020 in Misc. Case No.140/2019 was reviewed and set aside on the ground of being passed beyond jurisdiction.

Though much has been pleaded and argued by the parties, yet having regard to the short point involved, this Court does not deem it necessary to refer to the facts in extenso but to confine its adjudication referring to only the relevant facts.

The petitioners claim to be the sthitiban tenants of the case property recorded under CS Khata No.189 measuring Ac.45.45 dec. and C.S. Khata No.37, 147, 173, 208 and 160 measuring area Ac.60.45 dec. which corresponds to Hal Khata No.222. The entire property was part of the trust estate of Lord Jagannath as the intermediary with Raja Ramachadra Dev as the marfatdar. Nitei Pradhan and Manguli Pradhan were the tenants under the intermediary. Because of non-payment of rent by the tenants, the intermediary filed Rent Suit No. 1470 of 1938-39, which was decreed in its favour and the property was put to Court auction. One Rani Harsamukhi Dasi was the auction purchaser of C.S. Khata No.189 on payment of consideration amount of Rs.550/-. The sale certificate being issued by the Court, possession of the land was handed over to her and she became the sthitiban tenant under the intermediary by paying rent. On 16.03.1942, Rani Harshamukhi Dasi sold the entire land to Mani Gopal Das by way of a registered conveyance deed. In so far as the property under the remaining Khatas are concerned, Narasingha Mohanty, Balabhadra Khuntia, Apei Pradhan, Jambeswar Khuntia and Dukhan Jena were the tenants. They also defaulted in payment of rent for which rent suit was filed by the intermediary and the property was put to auction. In the said auction, the intermediary was the auction purchaser. Mani Gopal Das was inducted as a tenant in respect of the said land by the intermediary. To recapitulate, Mani Gopal Das acquired tenancy right over Ac.45.45 dec. of Khata No.189 by way of purchase from Rani Harsamukhi Dasi and was inducted as a tenant by the intermediary in respect of the other Khatas measuring Ac.60.45 dec.

On 18.03.1974, the trust estate of Lord Jagannath vested to the State of Odisha free from all encumbrances including the estate where Lord Jagannath was the landlord. The vesting notification was challenged by Shri Jagannath Temple Administration (for short, ‘Temple Administration’) before this Court in OJC No. 233 of 1977, which was dismissed on 24.02.1981. Said notification was further challenged by the Temple Administration before the Supreme Court in Civil Appeal No.3177 of 1982, which came to be dismissed on 02.11.1988.

In the meantime, on 01.04.1977, the final settlement ROR was published with the name of Jagannath Mahaprabhu Bije, Puri - marfat Mandira Parichalana Committee being recorded in the landlord column. The petitioners being the successors of Mani Gopal Das were recorded as sthitiban tenants of Hal Khata No.222 corresponding to all the aforementioned C.S. Khatas. A proceeding was initiated under Chapter-V of the Orissa Estates Abolition Act, 1951 (in short ‘OEA Act’) being T-236(S)/1977-78 which culminated in order dated 08.07.1998 with assessment and determination of compensation which was also paid to the ex-intermediary.

On 17.04.2017, the petitioners wanted to sell a portion of the land out of Khata No.222 and presented the sale deed before the Sub-Registrar, Puri for registration. By order dated 21.04.2017, the Sub-Registrar refused to register the sale deed citing the bar under Section 22-A of the Registration (Odisha Amendment) Act, 2013. The petitioners initially approached this Court against such refusal but subsequently, they filed an application under Rule-34 of Orissa Survey and Settlement Rules, 1962 (in short, ‘OSS Rules’) before the Tahasildar, Puri for correction of the entry made in the first part Khewat of the ROR on the ground that the property was vested to the State and compensation was paid to the ex-intermediary as per the order passed by the competent Court under the OEA Act. The Tahasildar registered Misc. Case No.140/2019 and after hearing all parties, allowed the claim of the petitioners vide order dated 30.06.2020 by directing deletion of the name of Shree Jagannath Mahaprabhu from the landlord column and substitution of the name of ‘Odisha Sarkar’ in its place. The Temple Administration filed an application for review of the aforementioned order under Rule-43 of the OSS Rules. After hearing all parties, the Addl. Tahasildar held that since similar type of grievance of the petitioners was disallowed in SRP in the Court of the Commissioner, Consolidation, Odisha, Bhubaneswar vide SRP No. 1 of 2013, he set aside his earlier order dated 30.06.2020 passed in Misc. Case No. 140 of 2019 with further direction to keep the previous record as per Settlement Publication ROR of 1977 intact.

The petitioners challenged the above order before this Court in W.P.(C) No. 21082 of 2020 on the ground that notice of the hearing of the review application was never served on them. This Court, by order dated 23.11.2020 disposed of the writ application by holding that there is a doubt with regard to service of notice on petitioner No.1 (Madhabi Dutta) and accordingly, set aside the order dated 27.07.2020 and remitted the matter to the Additional Tahasildar for fresh adjudication of the petition under Rule-43 of the OSS Rules giving opportunity of hearing to the parties concerned. Subsequently, the petitioners filed I.A. No. 625 of 2021 seeking withdrawal of the writ application, which was allowed by order dated 25.01.2021 granting them liberty to agitate their grievance in a properly constituted writ petition. Again, the petitioners filed W.P.(C) No. 11730 of 2021 seeking a direction to the Additional Tahasildar to dispose of the review application at an early date. By order dated 31.03.2021, this Court taking note of the fact that hearing of the review petition (Misc. Case No.140 of 2019) had already been concluded, directed the Additional Tahasildar to pronounce the order within 15 days.

In the meantime, the matter being remitted by this Court, was re-registered as Misc. Case No. 1 of 2021 before Addl. Tahasildar. After hearing the parties, the Addl. Tahasildar, by order dated 13.04.2021 held that his predecessor had committed mistake in entertaining the application for correction of ROR as the cause of action arose prior to publication of the ROR. He therefore, allowed the review and set aside the earlier order.

Said order is impugned in the present writ application.

According to the petitioners, their predecessor had acquired the status of the sthitiban tenant under the ex-intermediary much prior to the date of vesting by way of purchase from Rani Harshamukhi Dasi, the auction purchaser as well as being inducted as tenant by the ex-intermediary itself. The trust estate having vested free from all encumbrances to the State with all consequential steps being taken as per the OEA Act, the ex-intermediary lost all right and title over the property. The settlement ROR must therefore, be treated as being wrongly prepared showing the ex-intermediary as the landlord. The petitioners’ cause of action arose only when the vesting notification attained finality consequent upon dismissal of the writ petition by this Court as well as the civil appeal by the Supreme Court. Further cause of action also arose when the vesting notification was fully given effect to by the acceptance of the annuities and compensation by the ex-intermediary in a duly constituted proceeding. All this happened after final publication of the ROR and therefore, Rule-34(c) and (e) of the OSS Rules was rightly invoked. The Tahasildar could not have reviewed his earlier order in the absence of any mistake or error apparent on the face of the record.

The State contends that the cause of action for the petitioners arose prior to the settlement operations, since the yadast was prepared as far as back as on 09.07.1963, which recorded their sthitiban right in respect of the case properties. The fact that the ROR was published showing Jagannath Mahaprabhu as the landlord, the petitioners being aggrieved, ought to have invoked the revisional jurisdiction of the Board of Revenue under Section 15(b) of the OSS Act. It is the further case of the State that the question of vesting and/or payment of compensation to the ex-intermediary, is a matter strictly between it and the State, wherein the petitioners have no role to play. The Tahasildar, therefore, wrongly entertained the application filed under Rule-34 even though he had no jurisdiction. This being an error apparent on the face of the record, was rightly reviewed and the earlier order set aside.

It is contended that Rule-34 of the OSS Rules can be invoked in cases where the cause of action arises after settlement. The petitioners’ claim is based on the purported cause of action arising much prior to final publication of ROR. They could have raised objection under Section 12 before the Asst. Settlement Officer during settlement or preferred appeal under Section 12-A before the Settlement Officer but chose not to do so. The above aspects were not taken into consideration by the Tahasildar while entertaining the application under Rule 34 and therefore, it was an error of jurisdiction. The order passed was therefore, rightly reviewed and set aside. Further, the petitioners are guilty of suppression of material facts as several intrinsic facts relating to the case property were not brought on record such as, the fact that property was endowed as part of Kala Bethia Seva to the villagers of Samangara and Batagaon village. It is the further case of the Temple Administration that the revenue laws like the Odisha Land Reforms Act and Odisha Estate Abolition Act etc. do not apply to the estate of Shree Jagannath as it has been held that Shri Jagannath Temple Act, 1955 is a special legislation having overriding effect. The so-called sale by Rani Harshamukhi Dasi on 16.03.1942 was in contravention of Section 58 of Orissa Hindu Religious Endowments Act, 1939. The so-called lease granted by the ex-intermediary is also in contravention of the statutory provisions. The Board of Revenue, on 13.04.2017 issued advisory to all authorities that the lands in Satais Hazari Mahal are earmarked for the seva of Lord Jagannath and the sevayats are not entitled to record their names as raiyats in the ROR. Most importantly, on 12.12.2017, the petitioners approached the Temple management seeking permission to execute sale deed, which was rejected on 15.01.2018. Thus, the petitioners admitted Shree Jagannath Mahaprabhu as the owner of the property.

The Temple Administration has itself instituted a revision being SRP No. 101 of 2023 seeking revision of Hal Khata No.222, which is sub-judice. Further, the petitioners have filed a Civil Suit being C.S. No. 612 of 2016 claiming partition, which is subjudice. It is also the case of the Temple Administration that the Supreme Court ultimately laid down the law relating to the estate of Lord Jagannath in the case of Jagannath Temple Managing Committee v. Siddha Math^{11.(2015) 16 SCC 542} to the effect that once the property stood vested in and governed by the Temple statutory regime, the same proprietary interest could not subsequently be divested through the general OEA Act. The claim of the petitioners does not come within ‘settled claims’ referred to in Siddha Math case as it is yet to be finally settled.

Heard Mr. N.K. Sahu, learned Senior Counsel with Mr. S. Sahu, learned counsel for the petitioners; Mr. G. Mohanty, learned Standing Counsel for the State and Mr. Ananda Swain, learned counsel appearing for the Temple Administration.

Mr. N.K. Sahu, learned Senior Counsel argues that the power of review vested in the Tahasildar under Rule 43 of the OSS Rules is confined to correcting mistakes or errors apparent on the face of the record. An error of jurisdiction does not fall within the scope of review. Citing the judgment of the Supreme Court rendered in the case of Nusli Neville Wadia v. Ivory Properties^{22.(2020) 6 SCC 557}, he argues that jurisdiction is the power to decide and not merely the power to decide correctly. It does not depend upon the correctness of the decision made. If a Court has jurisdiction to entertain a matter but in exercise of such jurisdiction, a mistake has been committed, though it would be a jurisdictional error, it would be open for interference by the higher forum only. In the instant case, the Tahasildar in his earlier order referred to the relevant facts, such as determination and payment of compensation to the Temple Administration and the inapplicability of the judgment in Siddha Math (supra). This satisfies the requirement under Rule-34 to enter into the dispute for correction of the record of the right. Therefore, the order cannot be reviewed by exercising power under Rule-43.

As regards the cause of action, Mr. Sahu would argue that the vesting notification was initially challenged by the Temple Administration before this Court (OJC No. 233 of 1977) which came to be dismissed on 24.02.1981. Said notification was further challenged by the Temple Administration before the Supreme Court in Civil Appeal No.3177 of 1982, which came to be dismissed on 02.11.1988. The operation of the notification was stayed during pendency of the writ application before this Court, and again during pendency of the SLP before the Supreme Court. Therefore, the cause of action could not be said to have arisen at that point of time. In the meantime, the settlement ROR was finally published and therefore, the relevant date would be the date of dismissal of the SLP and not the date of notification itself.

On merits, Mr. Sahu would argue that the relevant provisions of the OEA Act show that the term ‘estate’ includes the interest of all persons who hold some rights on land between the State at the apex and the raiyat at the base. The Act intended to abolish all intermediaries and rent receivers to establish direct relationship between the raiyat and the State. Thus, the ex-intermediary in the present case being the Temple Administration lost all interest over the estate free from all encumbrances and it became absolute property of the State. It is evident from the fact that the vesting notification, which was challenged right up to the Supreme Court was never interfered with. As regards the cause of action, Mr. Sahu would argue that the actual cause of action accrued to the petitioners to approach the Tahasildar under Rule 34 for correction of the ROR only after its publication on the date when the vesting notification was upheld by the order of the competent Court and the consequential follow up action was taken under the OEA Act for determination and the payment of compensation by way of perpetual annuity to the ex-intermediary and not from the date of vesting. Mr. Sahu amplifies his contention as above by submitting that the vesting notification was finally upheld by dismissal of the SLP by the Supreme Court on 02.11.1988 and thereafter on final determination of the compensation by the Compensation Officer appointed under the OEA Act. Therefore, the entry made in the first part Khewat of the ROR published in the year 1977 had no relationship with the existing fact which could be corrected under Rule 34 (c) and (e) of the OSS Rules. Mr. Sahu further argues that determination of compensation and payment thereof to the ex-intermediary under Chapter-V of the OEA Act is a judicial determination by the OEA Collector-cum-Compensation Officer in consequence of vesting of the intermediary estate to the State. Having accepted the same without raising any question, the ex-intermediary cannot now turn around and claim the privilege of landlord against the State.

As regards the applicability of the ratio decided in Siddha Math (supra), Mr. Sahu would argue that in view of the observation in Para-34(iv) of the said judgment, the right of the parties having been set at rest much prior to passing of the said judgment, cannot be reopened. In support of his arguments as above, Mr. Sahu has relied upon several judgments which shall be referred to, if need be, at the appropriate stage.

Mr. G. Mohanty, learned Standing Counsel would argue that the petitioners rely upon the yadast report published during the settlement operations. They could have preferred an objection under Section 12 or appeal under Section 12 -A of the OSS Act, as the case may be. Even after final publication of the ROR on 01.04.1977 showing Lord Jagannath as the landlord, the petitioners, if aggrieved, could have resorted to the provision under Section 15(b) of the OSS Act. Thus, the cause of action arose prior to final publication and not thereafter. Mr. Mohanty further argues that even otherwise the matter of vesting and payment of compensation etc. is entirely between the ex-intermediary and the State, in which the petitioners have no role to play. In any case, their rights as sthitiban tenants have not been affected in any manner. The Tahasildar therefore, could not have corrected the ROR at the instance of the petitioners in an application filed under Rule-34 of the OSS Rules, which provides exercise of power only if the cause of action arises after final publication. Therefore, exercising jurisdiction when he had none, renders the judgment a nullity for which the same was rightly reviewed. Mr. Mohanty relies upon the judgments of the Supreme Court in the case of Hindustan Zinc Ltd. v. Ajmer Vidyut Vitran Nigam Ltd.^{33.(2019) 17 SCC 82}, and Kamlesh Verma v. Mayawati^{44.(2013) 8 SCC 320},

Mr. Swain, learned counsel appearing for the Temple Administration also makes similar arguments as the State Counsel. As regards error of jurisdiction, he submits that cause of action having arisen prior to the final publication of ROR, the Tahasildar had no power under Rule-34 to make any correction thereto. Therefore, the order so passed becomes an error apparent on the face of the record for which it was rightly reviewed. That apart, this Court in W.P.(C) No.21082 of 2020 remitted the matter for fresh adjudication of the review application. Correcting the name of the landlord from Lord Jagannath to Government of Odisha is not by way of correction of any accidental slip or clerical omission. It fundamentally altered the juridical identity of the recorded superior landlord in a finally published settlement ROR. Citing the judgment of a Division Bench of this Court in the case of Harihar Mohapatra vs. Commissioner of Land Records and Settlement and Others^{55.(1998) (II) OLR 495}, Mr. Swain submits that correction under Rule 34 must be founded upon a cause of action arising after publication of the ROR. The petitioners themselves rely upon the vesting notification, which was issued on 18.03.1974, which is prior to the date of final publication.

On merits of the claim of the petitioners, Mr. Swain argues that the land in question was part of Satais Hajari Mahal granted to the Raja of Puri by the then British Government. The Raja functioned as the superintendent without any personal beneficial interest. The Puri Shri Jagannath Temple (Administration) Act, 1952 was enacted to bring the administration of the temple within a special statutory regime. The Shri Jagannath Temple Act, 1955 placed all the endowments of the temple under the overriding statutory regime under Section 5. Therefore, any proceedings initiated post-1955 Act under any of the revenue laws, cannot be used to treat the property as belonging to the independent estate of Raja or any other intermediary. This was clarified by this Court in Rama Chandra Deb. Vs. The State of Orisha^{66.MANU/OR/0003/1959 / AIR 1959 Ori 5}. On the other hand, the OEA Act is a legislation designed to eliminate intermediaries and bring cultivators into direct relationship with the State. As such, it cannot prevail over the 1955 Act. This was expressly held by the Supreme Court in Siddha Math (supra) to the effect that 1974 amendment to the OEA Act cannot operate upon the temple properties because the Temple Act had already been enacted and all temple lands vested in the temple committee. Once the land had already vested in the temple committee under the Temple Act, the same could not have subsequently been divested by applying Sections 2(oo) and 3A of the OEA Act. There was no beneficiary intermediary title in the Raja as on the date of vesting which the State could apply. The source of title of the temple lies anterior to the notification of vesting.

As regards paragraph-34 of the Siddha Math Judgement, Mr. Swain submits that the claim of the petitioners cannot be treated as ‘settled claim’. In so far as the compensation case is concerned, it is argued that even for the sake of argument, if it is accepted that the same was the result of an administrative mistake, the same cannot be utilized to determine the rights of the petitioners as there can be no estoppel against the statute. The petitioners’ claim is not backed by any statutory order showing that the lands were settled with their predecessor with occupancy right and with the former superior interest being extinguished. Mr. Swain argues that the petitioners are guilty of suppression of material facts inasmuch as they had preferred appeal against the order of refusal of registration before the Addl. District Magistrate, Puri which also came to be dismissed by order dated 08.06.2017. The petitioners thereafter approached this Court but being unsuccessful, approached the Temple Administration seeking permission to sell a portion of the disputed property. The Administrator of the Temple Administration by a detailed order passed on 25.01.2018 rejected the application on the ground that the land in question is part of religious endowment of Lord Jagannath and they have no right, title and interest over the same. The order was further challenged before this Court in W.P.(C) No. 1266 of 2018, which was subsequently withdrawn. All the above facts have been suppressed by the petitioners for which the writ application deserves to be dismissed on such ground alone.

Though the parties have made lengthy and elaborate arguments touching upon the merits of the claim of the petitioners, the principal question involved being the correctness or otherwise of the order passed by the Tahasildar in review, this Court proposes to first take the same into consideration. The other aspects would depend on the answer to the principal question as above.

It would be apposite at the outset to first keep the statutory scheme in perspective relating to correction of ROR. Rule-34 of the OSS Rules is reproduced below.

A plain reading of the provision makes it clear that the Tahasildar can exercise jurisdiction to correct entries in a finally published record of right only on the grounds enumerated in the provision. The provision has been interpreted by a Division Bench of this Court in the case of Harihar Mohapatra (supra), wherein the Court observed as follows:

This position of law has been reiterated subsequently in several judgments rendered by this Court including the case of Pravakar Swain & Ors. v. Tahasildar, Aul & Ors.^{77.2012 (1) ILR-CUT-186/ MANU/OR/0838/2010}, wherein referring to Harihar Mohapatra (supra), the Court held as follows:

This takes the Court to the important question as to when the cause of action could be said to have arisen in the case at hand. According to the petitioners, the cause of action for filing the application under Rule 34(c) and (e) arose when the Supreme Court confirmed the vesting notification. It is also contended that the cause of action can be said to have arisen upon consequent follow-up action being taken under the OEA Act for determination and payment of compensation to the ex-intermediary. Admittedly, the notification of vesting was published on 18.03.1974 when the trust estate of Lord Jagannath vested to the State of Odisha, free from all encumbrances. It is also admitted that the settlement ROR was finally published on 01.04.1977. According to the petitioners, the estate having vested to the State of Odisha, the ex-intermediary lost all right and interest over the estate and therefore, the publication of final ROR subsequent to vesting in the name of the ex-intermediary again is bad in law. The final ROR is being questioned on the ground that the estate had already vested to the State and therefore, the ROR ought to have been published showing the State as the landlord.

Viewed from any angle, cause of action can only be the publication of vesting notification on 18.03.1974. It was argued that the same was challenged before this Court without success, followed by challenge before the Supreme Court, also without success. Therefore, the date on which the Supreme Court dismissed the SLP confirming thereby the vesting notification is the date of accrual of cause of action. This Court is not impressed with the above argument because dismissal of the writ application by this Court and of the SLP by the Supreme Court is nothing but a confirmation of the validity of the notification only and cannot be construed as giving rise to a fresh cause of action by any means. It only confirmed what already existed. Even otherwise it is well settled that the judgment of this Court will always be retrospective in nature unless the judgment itself specifically states that it will operate prospective, as held by the Supreme Court recently in the case of Kanishk Sinha & Another vs. The State of West Bengal & Anr.^{88.2025 LiveLaw (SC) 259 : 2025 SCC OnLine SC 443}. Therefore, the relevant date would still be 18.03.1974 and not the date on which the SLP was dismissed by the Supreme Court. Such being the factual situation, there can hardly be any doubt that the cause of action must be treated as having arisen on 18.03.1974, which admittedly predates the final publication of the settlement ROR.

It was also argued that though the notification was issued on 18.03.1974 yet its operation was stayed by the High Court in the writ application filed against it and again, by the Supreme Court in the SLP filed against the judgment of the High Court. So, it must be deemed that there was no notification in the eye of law till dismissal of the SLP by the Supreme Court, which was after publication of the settlement ROR. This Court can consider such argument only to reject it because operation of an interim order of stay during pendency of the writ application and/or SLP is only a temporary suspension of the operation of the notification and not an order nullifying it altogether. Moreover, the notification having been refused to be interfered with by the High Court as well as the Supreme Court, it can only mean, as already stated, a confirmation of what already existed. The Supreme Court never said that the notification shall take effect from the date of dismissal of the SLP. Therefore, mere pendency and ultimate dismissal of the SLP cannot stretch the date of notification from 18.03.1974 to a later date.

As regards the effect of interim order of stay the Supreme Court in the case of State of U.P. v. Prem Chopra^{99.(2024) 12 SCC 426 : [ 2022 ] 2 S.C.R. 990}, held as follows:

To reiterate, the date remains as it is.

It has been argued that determination of annuities and compensation is a judicial determination and is the actual culmination of the process of vesting. In other words, the vesting notification was given effect to only upon order passed by the authority under the OEA Act. Therefore, the application under Clause (c) of Rule-34 is maintainable. This Court is unable to accept the argument as above for the reason that determination of compensation by the OEA Authority is consequent upon the vesting notification and not the other way round. The main source still lies in the vesting notification, without which no compensation could have been determined and/or paid. Moreover, the right of the ex-intermediary to continue as the superior landlord was not a question decided in the compensation proceeding. The order determining compensation cannot therefore be treated as ‘order of any competent authority’ within the meaning of Clause (c) of Rule-34.

It was also argued that the estate having vested to the State on the strength of vesting notification, which was confirmed by the Supreme Court, recording of the name of the ex-intermediary again as the landlord is contrary to the existing facts particularly when the vesting notification had been carried to its logical conclusion. Therefore, the application is maintainable under Clause(e) of Rule-34. This Court is not inclined to accept the above argument also. This is for the reason that the estate of Lord Jagannath being governed by the provisions of Shri Jagannath Temple Act, 1955, cannot be equated with any other estate, to which the revenue laws of the State apply in full force. So, notwithstanding the vesting notification, it cannot simply be said that the Temple Administration lost all rights over the estate. This is a question that requires determination in light of the relevant provisions of the Shri Jagannath Temple Act vis-‡-vis the Orissa Estate Abolition Act having due regard to the ratio decided in the case of Siddha Math (supra). Therefore, only on the face of the vesting notification, recording of the name of Lord Jagannath in the ROR as the landlord cannot be treated as entry having no relationship with the existing facts so as to come within the mischief of Clause (e) of Rule-34.

As such, invocation of Rule-34 for purported correction of the entries in the ROR is entirely misconceived and untenable. The Tahasildar must therefore, be held to have committed manifest illegality in entertaining and allowing the application filed by the petitioners under Rule-34(c) and (e) of the OSS Rules.

This takes the Court to the next question as to the correctness of the subsequent order passed by the Tahasildar in reviewing his earlier order. At this stage, it would be proper to first refer to the original order passed by the Tahasildar, copy of which is enclosed as Annexure-23 to the writ application. While allowing the application, the Tahasildar has, inter alia, observed as follows:

Thus, it is evident that the Tahasildar took into account the facts existing prior to and on the date of vesting and the consequential action taken pursuant thereto to hold that the recording of the name of the ex-intermediary in the settlement ROR is erroneous.

In view of what has been discussed hereinbefore, clearly the Tahasildar exceeded his jurisdiction by dealing with matters beyond boundaries of the provision under Rule-34. In short, he had no jurisdiction to enter into such aspect. In any case, the facts referred are relatable to a period anterior to the date of final publication of ROR. As such, the Tahasildar must be held to have acted beyond jurisdiction. In doing so, the Tahasildar has materially altered the finally published settlement ROR.

It is the settled position of law that an error of jurisdiction goes to the root of the matter as the order passed in such a case is nothing but a nullity. This Court is of the considered view that the order of the Tahasildar is not just a product of mistake capable of being corrected in appeal but non-est being without jurisdiction. Both are not the same thing. The question is, can the power of review be invoked to correct such jurisdictional error. In this regard reference to Rule-43 would be proper, which is reproduced below:

The position with regard to review is well settled. The power of review is not an appellate power and cannot be exercised only because another view is possible on the facts or because a party seeks reconsideration of the matter already decided. In case of Sow Chandra Kante v. Sk. Habib^{1010.1975) 1 SCC 674}, the Supreme Court observed as follows:

The distinction between a mere erroneous decision and an error apparent on the face of the record has also been explained by the Supreme Court in the case of Thungabhadra Industries Ltd. v. Government of Andhra Pradesh^{1111.AIR 1964 SC 1372}, wherein it was observed as follows:

In the case of Kishinchand Chellarams (India) (P) Ltd. v. G. Varadappa^{1212.1994 SCC OnLine Mad 398}, the Madras High Court, while relying on the decisions in the cases of Sow Chandra Kante (Supra) and Thungabhadra Industries Ltd. (Supra) held that where the earlier order was passed without jurisdiction and was, therefore, non-est, such circumstance constitutes a substantial and compelling ground for review. It was observed as follows:

Applying the aforesaid principles to the facts of the present case, the error of jurisdiction is not something that requires detailed examination of facts. As already discussed, two dates are relevant being, 18.03.1974, the date of vesting notification and 01.04.1977, the date of final publication of settlement ROR. Since the cause of action arose with the issuance of the vesting notification or as the Tahasildar held, even prior to it, which is much before the date of final publication of the settlement ROR, it can be easily held that Rule-34 had no application. This is the error apparent on the face of the record which does not require detailed analysis of facts or materials on record.

In the order passed in the review application, registered as Misc. Case No.1/2021, the Tahasildar has rightly referred to the relevant dates to hold as follows:

From what has been narrated hereinbefore, this Court is convinced that the order passed by the Tahasildar on review is unassailable being passed on proper appreciation of the facts of the case and the power under Rule- 34 of OSS Rules. This Court therefore, finds no reason to interfere.

Having regard to the finding as above, this Court finds it unnecessary to go into the other aspects flagged by the parties touching the merits of the claim of the petitioners, leaving it open to be raised in any proceeding before the appropriate forum.

For the foregoing reasons therefore, the writ application fails and is therefore, dismissed.