JUDGMENT :

G.B. Pattnaik, J. - In this writ petition, the petitioners question the legality of the order of opposite party No. 4 dated 20-2-1978, annexed as Annexure-5, by which order he reviewed his earlier order dated 5-4-1977 and also the legality of the order dated 12-10-1982 passed by the Member, Board of Revenue, in exercise of his power u/s 38-B of the Orissa Estates Abolition Act, annexed as Annexure 9.

After stating the facts it is found :

4. It is necessary to state some admitted features of this case before entering into a discussion on the merits of the contentions raised by counsel on their side. The properties in question are the waqf properties of mosque, Juma Masjid and Sk. Wahabullah was the Motwali. Though the lands vested under the provisions of the Orissa Estates Abolition Act on 18-3-1974, no application had been filed to the Collector under the said Act for settlement within the stipulated period. The application which was filed in the year 1976 by Sk. Rasul Bux, the father of the present petitioners as well as the application filed by opposite parties 7 and 8 on 28-11-1977, are the applications not under the Orissa Estates Abolition Act, but under the Executive Instructions issued by the State Government commonly known as the 'Lease Principles' and consequently, the orders passed by opposite party No. 4 on such applications must also be taken to be orders passed under the provisions contained in the said Executive Instructions. The aforesaid Executive Instructions were issued by the State Government in the Revenue Department under G.O. No. EA-ll-110/63 14399, dated 2-3-1964. These Executive Instructions had been issued by the Government to grant fresh lease of the lands to the concerned persons who would have been entitled to retain the lands had they applied for in time, on realisation of arrear rent and salami, though under the provisions of the Orissa Estates Abolition Act, the lands in question would be treated as having been vested in the State Government. Under the Lease Principles, the competent authority must be satisfied that the applicant is not asking for advantages that would not have been available to him under the provisions of the Orissa Estates Abolition Act and the lands can be settled with eligible person with rights of occupancy on condition that salami equivalent to three times the annual rent levied by the Tahasildar shall be paid and rent becomes payable from the date of settlement. Against the order of the Tahasildar, rejecting an application, appeal lies to the Subdivisional Officer within thirty days from the date of the order and a revision lies against the order of the Subdivisional Officer to the Collector within thirty days from the date of the order of the Sub-divisional Officer. Subsequent to the aforesaid Executive Instructions, the Board of Revenue has also issued instructions supplementing the earlier one laying down a procedure to be followed by the Revenue Officers before granting lease. This being the procedure prescribed for dealing with the application for lease, the Tahasildar (opposite party No 4) had no jurisdiction to review his earlier order dated 5-4-1977 on 20-2-1978 as per Annexure-5. Review has always been held to be a creature of the Statute, The administrative instructions laying down the procedure do not authorise the Tahasildar to review his own order. Further, the order dated 5-4-1977 settling the land with the petitioners' ancestor, Sk. Rasul Bux, confers right on the petitioners and that right cannot be taken away by taking recourse to reviewing the same, where the set of administrative instructions under which opposite party No. 4 has acted do not authorise him to do so. Consequently, the order of opposite party No. 4 dated 20th of February, 1978 must be held to be without jurisdiction.

5. It then appears that opposite party No. 3 had set aside the order dated 20-2-1978 when an appeal was carried against that order and he was justified in passing such o