Section 38-B of the Orissa Estates Abolition Act has retrospective effect and applies to cases of lease given under Executive Instructions. It is not confined only to compensation matters under the Act.

JUDGMENT :

K. Ramamurthy, Member. - This is a revision under Section 38-B of the Orissa Estates Abolition Act moved by Collector, Puri against the orders of Tahasildar, Nayagarh in O.E.A. Case No. 32/68-69 dated 15-1-1971 settling 11.08 acres of land in favour of opposite parties under Sections 6 and 7. In the 1932-33 Record-of-Right, the opposite parties are recorded as sevayats in possession and the intermediary Gopinath Jew Marfat Rajsarkar. The kissam is Debottar Tanki. An appeal was filed before the Addl. District Magistrate. It was dismissed for default by his order dated 2-9-1972 in Appeal Case 19/71.

2. Standing Counsel argues that the estate was declared as trust estate under Section 57-A of the O.L.R. Act in Misc Case No. 79/77 dated 22-2-1972. As such he claims that either the Marfatdar or the deity alone can claim lands under Sections 6 and 7 and not the Sevayats.

3. Sri A.B. Misra, Advocate appearing for the O.Ps argues that the lands were settled with O.Ps on lease principles on payment of Salami. In subsequent settlement operation also the land has been recorded in their names and the order has become final. No appeal has been filed against this decision.

4. He further refers to an order dated 4-12-1968 of the Tribunal which declared this to be private estate and not a trust estate. Again this O.J.C. 1082 and 1083 of 1969 were filed in the High Court. Hi Court declined to interfere with the order of the Tribunal dated 4-12-1968 and the writ applications were dismissed on 30-6-1970.

5. In 1971 one Arakhit Das filed a petition under Section 57-A of the O.L.R. Act claiming that he was a temporary trustee of this deity in 1962. Shri Misra points out that under section 27 of the Orissa Hindu Religious Endowment Act maximum five years time is given to any temporary trustee. In any case his appointment was stayed by the High Court as well as by the Assistant Endowment Commissioner. There was no notice to the O.Ps.

6. O.Ps filed a writ in the High Court, Endowment Commissioner was made a party. The latter conceded that 1978 order declaring this as trust estate will not apply to this land. Advocate General also conceded this point in the High Court.

7. Shri Misra further quotes from the Settlement Report of Nayagarh State of 1932-33 wherein it has been explained that Rajsarkar has been declared as Marfatdar in almost all cases of deities and certain individuals have been declared as Sevayats in possession on the ground that persons had assigned their own lands to the deities. In some cases such as Bhagabat Ghar, the villagers have been declared as Sevayats in possession.

8. He further relied on Article 168 of the Settlement. Report which gives the list of all major an minor deities in the State. All the major chides were managed by the Debottar Department and the minor deities, were supervised by the same Department. Gopinath Jew involved in this case is not found in the list of major or minor deities.

9. In the 146. Cr.P.C proceeding in Misc. Case 53 of 1963 it was declared by order dated 23-3-1964 that the O. Ps were in possession of the disputed lands. The deity was not a party in that ease. This decision has not been upset by any Civil Court.

10. In 1965 the land vested in Government. In 1968 it was declared that the trust was not a public trust. Under Section 13-A(e) of the O.E.A. Act. Tahasildar settled this land on the O.Ps on lease principles on 15-1-1971. The appeal was dismissed. In Case No. 108/74 a review application was filed before the Tahasildar. This was also dismissed.

11. Sri Misra further argues that over 12 years have passed since the order of settlement was made and therefore there must be limitation to upset such order.

12. Section 38-A provides a retrospective effect from one year. Section 38-B is silent on this issue. He points out that in the original Act of 1973 there was a limitation of one year for such revision by Board of Revenue and this was removed subsequently. He relies on 74 I.T.R. 642, AIR 1953 Na