1999 (5) TMI 596 - SC - Indian Laws

Appeal dismissed; order set aside as without jurisdiction; failure to publish is irregularity; new grounds barred by waiver

SC dismissed the appeal and upheld the HC's setting aside of the O.E.A. Collector's order dated 2.2.1976 as without jurisdiction. The Court held that ... Application seeking review of the order of settlement - power of review under Section 151 CPC - 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 - principles of estoppel - HELD THAT:- Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results - The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The O.E.A. Collector was satisfied of the notice having been published. Assuming that the notice was not published in the manner contemplated by law, it will at best be a case of irregularity in the proceedings but certainly not a fact striking at the very jurisdiction of the authority passing the order. The Appellate Authority, i.e., the ADM has in his order noted two other contentions raised by the appellants, viz., (i) the application for settlement by the respondent no.1 was not filed within the prescribed time, and (2) the application should have been treated as an application for lease and should not have been treated as a claim case. None of the two pleas was raised by the appellants in their pleadings. None of the two was urged before O.E.A. Collector. Therefore there was no occasion to consider those pleas. Still we may make it clear that none of the two pleas could have been a ground for recalling the order which was otherwise within the jurisdiction conferred on the O.E.A. Collector. Though it is a disputed question of fact, as noted by the High Court, that the application by the respondent no.1 was filed within the prescribed time or not. So also whether an application by way of claim petition or an application for grant by way of lease, both were entertainable by the O.E.A. Collector and it was for him to decide which way he chose to deal with the application. In any case, he had the jurisdiction to deal with the application. No case was made out before the O.E.A. Collector and the ADM for recalling the order of settlement dated 2.4.1966. The order did not suffer from lack of jurisdiction or from error of jurisdiction much less an inherent one. The High Court has rightly set aside the order dated 2.2.1976 passed by the O.E.A. Collector as the same was without jurisdiction. The appeal is therefore dismissed though without any order as to the costs. Issues Involved:The issues involved in this case are the validity of a settlement order passed under the Orissa Estates Abolition Act, 1951, the power of review/recall of orders by the authorities, and the jurisdiction of the O.E.A. Collector in settling land disputes.Validity of Settlement Order:The respondent, a deity, obtained a settlement order for certain lands under the Orissa Estates Abolition Act, 1951, which achieved finality as no appeal was filed against it. Subsequently, appellants sought a review of the settlement order based on procedural irregularities. The Additional District Magistrate remanded the case, citing non-compliance with statutory provisions. However, the High Court set aside the review order, emphasizing that the power to review was not vested in the O.E.A. Collector. The Supreme Court upheld the High Court's decision, noting that the review sought did not fall under the Act's provisions for review.Power of Review/Recall:The Act only provides for review under Section 38A for clerical or arithmetical mistakes. The O.E.A. Collector's attempt to recall the settlement order was challenged, leading to a discussion on the inherent power of courts to recall orders under specific circumstances, such as fraud, mistake, or lack of jurisdiction. The Court clarified that lack of jurisdiction renders proceedings null and void, while errors in jurisdiction require proper legal challenge.Jurisdiction of O.E.A. Collector:The appellants' challenge to the settlement order was primarily based on the alleged improper service of notice, not lack of jurisdiction. The High Court found that the notice was issued, albeit with missing pages, and the O.E.A. Collector had jurisdiction to settle the matter. The Court emphasized that even if the settlement application was filed beyond the prescribed time, it did not render the order without jurisdiction. The O.E.A. Collector's order was set aside as lacking jurisdiction, and the Supreme Court affirmed this decision, highlighting the importance of distinguishing between lack of jurisdiction and mere errors in exercising jurisdiction.In conclusion, the Supreme Court dismissed the appeal, affirming the High Court's decision to set aside the O.E.A. Collector's order as lacking jurisdiction and clarifying the grounds for recalling orders based on lack of jurisdiction, fraud, or mistakes prejudicing parties.