R.N. Misra, J.
1. Legal representatives of the original plaintiff have brought this appeal against the reversing judgment and decree of the learned Additional District Judge of Cuttack in a suit for title, possession and recovery of damages as also mesne profits. Plaintiff claimed that he and his co-sharer (the second defendant) purchased plot No. 2441 with an area of 60 decimals along with certain other properties in the year 1940 and ever since then they have been in possession as owners. In a partition between the co-sharers made subsequently the disputed property came to the plaintiff as exclusive owner. On a part of this plot he raised a house and continued to enjoy the vacant site as a threshing-floor. Plaintiff being an advocate's clerk usually stayed away from home. Defendant No. I happens to be the owner of plot No. 2442 adjoining the disputed property on the south. The property covered by plot No. 2441 vested in the State under the provisions of the Orissa Estates Abolition Act, 1951, and on an appropriate application under Chapter-II thereof, the same has been settled with the plaintiff and defendants 2 and 3. Defendant No. 1 constructed a boundary wall sometime in 1963 encroaching upon a part of plaintiff's land covered by 'Ka' schedule of the plaint. He also disturbed plaintiff's enjoyment of the property in the 'Kha' schedule, This led to the institution of the suit.
2. Defendant No. 1 alone entered contest and maintained that the disputed property was a part of his plot 2442; he had raised his house along with a compound wall in 1948 and beyond the compound wall of his lay a passage with five links' width on which defendant carried paddy sheaves and straw to his threshing-floor from his lands. Even if the disputed land had once formed part of plaintiff's plot, plaintiff has lost title to it on account of defendant's adverse possession for more than the statutory period. In an additional written statement, he disputed the settlement under the provisions of the Orissa Estates Abolition Act on the score that there was no compliance of the procedure laid down under Section 8-A of the Act and, therefore, plaintiff was not entitled to have support for his title from such settlement
3. The trial court decreed the suit holding that plaintiff had title to the property and directed removal of the encroachment on the 'Ka' schedule property. It also decreed recovery of possession of the 'Kha' schedule land. With regard to the settlement by the Estate Abolition Collector, the trial court observed:--
'......... But in view of the evidence of the Peon himself and P.Ws. 9 and 10, it appears that the Peon had read out the notice at the village where the suit land is situated by beat of drums and at the Hat place and hung the copy of the notice on the banian tree standing thereon. The evidence of these two P.Ws. namely 9 and 10 supporting the Peon's version is sufficient to hold that by beat of drums and by reading out the copy of the notices at three places of village and by hanging the copy on the banian tree at Hat area, which is the conspicuous place of the locality, the Peon had served the notice in the locality.'
4. On defendant No. 1's appeal, the learned Additional District Judge appraised the evidence again and concluded:--
'...... I would therefore hold in conclusion while agreeing with the finding of learned trial court that the process-server (P.W. 7) actually went to the village and served the notice by reading out the contents of the same at three places of the village by beat of drum and by hanging a copy of the notice on a banian tree at the local hat.'
The proviso to Section 8-A (2) of the Abolition Act which reads thus was then referred to -
'Provided that the Collector shall, as soon as may be after any such claim under Sub-section (1) or Sub-section (2) is filed, give public notice thereof by beat of drum in the appropriate locality and by placards posted at such conspicuous places as he deems fit, inviting objections from persons interested.'
The learned Appellate Judge relied upon the interpretation of the proviso made in two Division Bench decisions of this Court, namely Baikuntha Das v. Sm. Sabitri Devi (1971) 2 Cut WR 326 and Lalbihari Patnaik v. Saraswati Ray, (1973) 2 Cut WR 1026, and on the basis of the ratio laid down in these two decisions concluded thus:--
'In the light of the aforesaid discussions, I would hold that the mandatory provision with regard to the manner of service of notice has not been strictly followed, and as such service of notice cannot be said to have been proper. I am therefore unable to agree with the finding of the learned trial court that there is substantial compliance of the provision of law and as such the service of notice is to be considered to be proper. I am also unable to agree with his finding that the appellant-defendant No. 1 is not a person interested as contemplated in the first proviso to Sub-section (2) of Section 8-A of the Act and as such he is in no way prejudiced for strict non-compliance of the manner of service of notice such as non-posting of placards.'
Notwithstanding his finding that the evidence in the case clearly indicated that there was service of notice, he reversed the decree of the trial court and held that the settlement by the Abolition Collector did not enure to plaintiff's benefit. Accordingly, the trial court's decree has been reversed and the reversing decree is assailed in appeal.
5. When the appeal was placed for hearing before one of us counsel for the appellants maintained that the two Bench decisions (supra) have not correctly interpreted the proviso and have gone wrong in holding that in a suit which is a collateral proceeding so far as the settlement is concerned, it was open to the Court to vacate the settlement made under Chapter-II of the Act. It was also contended that the bar under Section 39 of the Abolition Act to maintainability of the suit has been lost sight of by the lower appellate court in the instant case.
When the second appeal came before a Division Bench, the appellants' counsel reiterated his contention. Since the earlier judgments of this Court are of the Division Bench, the Division Bench to which two of us were parties, directed the matter to be referred to a larger Bench for considering the correctness of the two Bench decisions. That is how the second appeal is now before us.
6. In Baikuntha Das v. Sm. Sabitri Devi ( (1971) 2 Cut WR 326) with regard to the notice this Court as a fact found:--
'It appears from the service return, annexure-2 to O.J.C. 360/71 that the notices were served on some conspicuous place in village Kundhibenta Sahi where the claimant Sabitri Devi (petitioner in OJC 2/67) resides. It is also clear from that return that notice was never published on or near the disputed land, nor was there any beat pf drums at the time of publication of notice, nor was any placard posted at any conspicuous place. The order-sheet further shows that the Collector did not specify the places where the notice is to be published''
(Underlining is ours)
After quoting the relevant Proviso, the Division Bench again said :--
'The object of such notice is to give as wide publicity as is feasible to claim preferred under Section 8-A. The claimant does not implead any opposite party, and it is in the nature of an ex parte application calling for adjudication of his claim and it is to guard against any act of fraud on the part of a claimant that the Legislature provides for a wide publicity. In view of the nature, design and object of this provision, and the serious consequences that are likely to follow from the non-fulfilment of its requirements, this provision must be regarded as mandatory. It is not open to the Collector to omit any process of such publication as is enjoined upon him in the said proviso. The public notice must be given by beat of drum in the appropriate locality which means the locality where the disputed land lies, and not in the village where the claimant resides. It is also incumbent that placards must be posted at conspicuous places intimating to all and sundry that a claim has been preferred to a particular piece of land and is pending consideration inviting objections. The intendment of such statutory direction is to provide a more durable means of giving notice, and minimise the chance of the local public missing it. The only discretion with the Collector is to select the conspicuous places where the placards are to be posted. It is only after such public notice is given that the Collector would get jurisdiction to proceed to dispose of the claim case. When an Act enjoins upon a specified authority that a particular act has to be done in a particular manner so that it may have jurisdiction to act further in the matter, the act must be done in that manner in order to be considered valid, and confer on the authority such further jurisdiction.'
In the second case (Lalbihari Patnaik v. Saraswati Ray, (1973) 2 Cut WR 1026), a Division Bench of this Court held:--
'The first proviso of Section 8-A (2) of the Orissa Estates Abolition Act lavs down that the Collector shall give public notice of the claims preferred under Section 8-A (1) or (2) by beat of drum in the appropriate locality and by placards posted at such conspicuous places as he deems fit, inviting objections from persons interested. It is the duty of the Collector acting under Section 8-A to specify the appropriate locality where public notice shall be given by beat of drum. That apart, Rule 3 of the Orissa Estates Abolition Rules provides the mode of service of notice required to be served under the provisions of the Orissa Estates Abolition Act. According to this rule, a copy of every notice required to be served under the provisions of the Orissa Estates Abolition Act shall be affixed to the notice boards respectively of the offices of the Collector of the district from which the notice is to be issued and the Collector of the district in which the notice is to be served. In the present case, the notice is to be issued from the office of the Collector of Cuttack and also to be served in the District of Cuttack and so, the copy of the notice should have been affixed to the notice board of the Collector of Cuttack. Nothing has been shown to us that this requirement of the rule has been carried out. It appears to us that the requirements of the first proviso to Section 8-A (2) have also not been complied with. The mere proclamation by beat of drum in a hat cannot be regarded as full compliance with these requirements inasmuch as that locality had not been determined by the Estates Abolition Collector as the appropriate locality for the purpose, (underlining is ours). That was the choice of the serving peon and amounts to an appropriation of the discretion vested in the Estates Abolition Collector. We are not satisfied that the A. D. M. committed any error of record in saying that there was no proclamation by beat of drum in the village where the disputed lands lie. He meant to say that public notice by beat of drum has not been given in appropriate place or appropriate locality.
It has been held by a decision of this Court in the case of Baikuntha Das v. Sabitri Devi, ILR (1971) Cut 1065 : ( (1971) 2 Cut WR 326) that the purpose of the notice under Section 8-A (2), first proviso, of the Orissa Estates Abolition Act is to give wide publicity to a claim preferred under Section 8-A. This provision must be regarded as mandatory. It is not open to the Collector to omit any process of such publication. If all the requirements of Section 8-A (2) are not fulfilled, the Collector cannot proceed further. In view of this legal position and in view of the finding of the A.D.M. that the requirements of Section 8-A (2), first proviso, have not been complied with, -- and we have no reason to differ from that finding of A.D.M., -- we do not find any merit in this writ application, ........'
7. We may point out here that the two Bench decisions referred to above were out of certiorari proceedings under Article 226 of the Constitution carried from decisions of the statutory tribunals under the Abolition Act, whereas this second appeal is out of a suit -- a collateral proceeding. Mr. Patnaik for the appellants contends:--
(i) The requirement of the proviso to Section 8-A (2) is not mandatory,
(ii) Compliance with the requirements specified therein is not a pre-condition to exercise of jurisdiction in the matter of effecting settlement;
(iii) The view taken that the placards are to be posted at such conspicuous places as the Collector himself may determine is unwarranted;
(iv) Where in a given case it is found that there has been substantial compliance of the requirements, the settlement cannot be interfered with;
(v) In view of the bar of jurisdiction of the Civil Court under Section 39 of the Estates Abolition Act, the scope for interference in a collateral suit would be limited; and
(vi) Reliance on Rule 3 of the Abolition Rules in the second Division Bench decision ((1973) 2 Cut WR 1026) is wholly unjustified in view of the terms of the rule itself.
8. Section 39 of the Estates Abolition Act provides:--
'Bar to jurisdiction of Civil Courts in certain matters:--
No suit shall be brought in any Civil Court in respect of any entry in or omission from a Compensation Assessment roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject of any application made or proceeding taken under the said Chapters.'
Section 39 of the Abolition Act would certainly bar the jurisdiction of the Civil Court in regard to matters specifically provided to be dealt with by the Collector under the Act. A Bench of this Court in the case of Benudhar Dalai v. State ILR (1958) Cut 417 : (AIR 1958 Orissa 197), very appropriately indicated dealing with provisions of Section 5 (i) of the Abolition Act; --
'The instant case will clearly come under the first of the two classes mentioned above, by Lord Esher. The date of the lease or settlement, that is, whether it was made on or after the 1st day of January, 1946, is the preliminary question on the decision of which the Collector gets jurisdiction to annul the lease or settlement if he is satisfied about the purpose of such lease or settlement. But the Act does not make his decision about the date of lease or settlement final and conclusive. In such cases, it will not be correct to say that the, Collector has no jurisdiction at all to ascertain the date of the lease or settlement where there is a dispute about that date. He has undoubtedly such jurisdiction, but his decision will not be conclusive and may be open to challenge before a superior Court or before a Civil Court.'
Distinction was drawn between collateral facts and essential facts and it was indicated that a finding on essential facts was binding and conclusive while a decision on collateral facts was open to examination by the civil court.
In the celebrated case of Secretary of State v. Mask and Co., AIR 1940 PC 105, Lord Thankerton speaking for the Judicial Committee laid down :--
'.........It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.........'
This dictum of Lord Thankerton has received unanimous approval of Courts in India. Therefore, a suit would lie to examine the validity of the decision of the Estate Abolition Collector when the order is challenged for not complying with the statutory provisions in the making of it.
Mathew, J, in the case of M. L. Sethi v. R. P. Kapur, (1972) 2 SCC 427 : (AIR 1972 SC 2379), pointed out :--
'The word jurisdiction is a verbal coat of many colours. Jurisdiction originally seems to have had the meaning which Lord Reid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147, namely, the entitlement to enter upon the enquiry in question. If there was an entitlement to enter upon an enquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Darman in R. v. Bolton, (1841) 1 Q.B. 66. He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. In Anisminic Ltd case (supra), Lord Reid said:
'But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive.'
In the same case. Lord Pearce said: 'Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or, in the intervening stage while engaged on a proper enquiry, the tribunal may, depart from the rules of natural justice; or it may ask itself the wrong questions: or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct. Any of these things would cause its purported decision to be a nullity.''
9. There can be no quarrel with the proposition advanced in the two reported Division Bench decisions of this Court that notice contemplated under Section 8-A (2) Proviso, is mandatory, and we have no hesitation to reject Mr. Patnaik's submission against it. The next question for consideration is. while the requirement of notice is mandatory, is the form of notice also mandatory In both the decisions Ray, J. presently learned Chief Justice, speaking for the Division Bench has taken the view that public notice has to be given by beat of drum in the appropriate locality which is the locality where the land forming the subject-matter of the claim case is located and by placards posted at such conspicuous places as the Collector deems fit. Exception has been taken by Mr. Patnaik to the view expressed in those cases that the Collector must specify the conspicuous places where the placards have to be posted and if in the direction for publication of notice the places are not indicated, the notice becomes defective and the entire order becomes vitiated. The correctness of the proposition accepted by the two Division Benches in the reported decisions has to be examined from various angles, namely-
(i) What exactly is the requirement of the law
(ii) Is the requirement mandatory i.e. unless complied with in terms, is jurisdiction to deal with the matter lost?
(iii) If there is substantial compliance in the matter of giving notice, would the settlement by the Collector yet be bad
As we have already indicated, legislative intention is clear that there must be public notice. Under the scheme of the Act, right, title and interest of intermediaries get extinguished and the settlement made under Chapter-II confers new rights. Settlement made by the Collector is likely to affect rights of persons who may have interest in the land Again, the jurisdiction of the common law court is barred. Under the statutory scheme when an application under Section 8-A made, no person is impleaded as an objector. When public notice is issued those who intend to enter contest become entitled to file objections under Section 8-A (4). Therefore, there can be no dispute regarding the opinion expressed by the two Division Benches that wide publicity of the claim is intended by statute. The requirement of notice stipulated in the Proviso is in conformity with the natural justice. Notice contemplated in the Act is a mandatory one.
10. The next aspect for consideration is even though notice is mandatory, is the procedure laid down about notice also mandatory The Proviso requires public notice to be given and two modes of such notice have been indicated, namely, (i) by beat of drum in the appropriate locality and (ii) by posting of placards at such conspicuous places as the Collector thinks fit. There is no dispute that 'appropriate locality' means, the locality where the claimed land is situated. This is one of the usual modes prescribed for public notice and such a requirement also does not create any difficulty. The dispute before us is in regard to the other requirement. According to both the Bench decisions of this Court, the legislature intended a more durable form of notice to be given and, therefore, placards were intended to be posted at conspicuous places. There is also no dispute so far as the requirement of posting of placards at conspicuous places goes. Objection is raised against the Division Bench decisions when it has been stated that at the time of directing issue of notice, the Collector must select the conspicuous places and if he has failed to so select, the notice becomes bad and all proceedings on the basis of such notice become vulnerable.
11. Mr. Mukherjee for the respondents has taken the stand that when the legislature has taken pains to provide in clear terms the manner of notice, it is not for the court to read into the provision and hold that the requirement is otherwise. Learned Government Advocate, whom we gave notice to assist the Court joins Mr. Mukherjee in reiterating the self-same submission and takes the stand that it is obligatory for the Collector to notify the conspicuous places where the placards are to be posted.
To take the. view that the Collector is obliged to select the conspicuous places for posting of placards at the time of directing issue of notice would actually be requiring him to perform an impossibility. The Collector under the Act is a Revenue Officer having large areas within his jurisdiction. With the wide definition of 'estate', large many intermediary interests have been abolished and they are widely scattered and spread out. Judicial notice can be taken of the fact that grants held by deities and located almost in every village within the State have been treated as estates and have been subject to abolition under blanket notifications. The Collector would not be in a position to select the conspicuous places in every case at the time of directing notice. There are various areas in the State where there was no settlement operation at all and for the first time such operation has now been undertaken and final publication of the record has not yet been made. It is also not very practicable to select conspicuous places in a given locality with reference to the settlement map.
The Supreme Court pointed out in the case of State of U. P. v. Manbodhan Lal Srivastava, AIR 1957. SC 912:--
'The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other .......'
The Supreme Court has also ruled that if by holding a provision to be mandatory serious general inconvenience would be created to innocent persons without very much furthering the object of the enactment, the same will be construed as directory. (See L. Hazari Mal Kuthiala v. Income-tax Officer, Special Circle, Ambala Cantt., AIR 1961 SC 200 and Banwarilal Aparwalla v. State of Bihar, AIR 1961 SC 849). Judicial notice can be taken of the position that all estates of whatever description have already vested and thousands of claim cases have already been disposed of under Chapter II of the Act. Notwithstanding the two division bench judgments, the Collectors under the Act mainly on account of practical difficulty have not complied with the requirement of the Proviso in the manner interpreted. There were several settlements even prior to 1971 when the first bench decision came. To take the view that the form of notice is mandatory and non-compliance in terms vitiates the order would make all innocent settlements non est and create great hardship to thousands of settlees. We are inclined to think that while notice is mandatory, the mode of notice is directory. Notice to the adversary is an essential or mandatory part of the procedure in the judicial process of every civilized country The procedure laid down for service of notice is usually directory. Discretion is vested in the process-serving machinery to pick and choose an acceptable mode of service. If service has been effected and the relevant person has notice of the matter, he is not permitted to take the stand that notice has not been served in the prescribed manner (see second Proviso to Order 9, Rule 13 of the Code of Civil Procedure),
The proviso to Section 8-A (2) of the Act is intended to ensure adequate publicity in the locality so as to make it practicable for every interested person to have notice of the claim. There can be no guarantee of notice to every person interested to object to the claim even if the provision is complied with to the letter. Therefore, the legislative intention being wide publicity of the claim so as to reach every interested person, unless there has been failure and consequent prejudice, we do not think there is any warrant for holding that non-selection of the conspicuous places by itself totally vitiates the subsequent proceeding. We hold that substantial compliance of the provision is enough and on the mere ground that the Collector had not selected the conspicuous places before directing notice would not nullify the settlement. The legislature has intended a durable mode of notice through placards to supplement notice by beat of drum and if the notices through placards have been placed by the serving officer at conspicuous places to be found in the service report and the Collector is satisfied about the correctness of it, there is compliance of the provision. This, in our opinion, is the only view possible to be taken.
Reference to Rule 3 of the Estates Abolition Rules in the second decision under review ((19731 2 Cut WR 1026) was misconceived That rule begins with 'Except as otherwise provided in the Act'. Where provision is made in the Act, Rule 3 does not apply. Admittedly notice by different modes is prescribed in the Proviso to Section 8-A (2) of the Act and the Division Bench in the second case went wrong in relying on Rule 3 to test the legality of the settlement. Learned Government Advocate and Mr. Mukheriee concede on this point.
12. We shall now proceed to examine the correctness of the two single Judge decisions being Mallia Budhi Thakurani v. Udayanath Parida, AIR 1974 Orissa 194, and Pitta Seethamna v. Ramachandra Mahapatra, (1976) 42 Cut LT 143. In the first case, in paragraph 4 of the judgment, the learned single Judge referred to the Bench decision in the case of V. Krishna Rao Dora v. Kotini Sitaram Dora, (1973) 39 Cut LT 975 for the proposition that if an occupancy raiyat did not contest the claim of an intermediary in khas possession after due service of notice, the settlement made by the Collector under Section 7 in favour of the intermediary in khas possession would be valid. We have grave doubt about the correctness of the aforesaid ratio in the Bench decision in Krishna Rao Dora's case. In the case of Kumar Bimal Chandra Sinha v. State of Orissa, AIR 1962 SC 1912, the Supreme Court indicated that interest of a raiyat was not touched by the Act and if there was an occupancy tenant on the property, even if the Collector made a settlement in exercise of his powers under Chapter II of the Abolition Act, there could be no scope for the conclusion that the tenancy, right of the occupancy tenant could be taken away. The settlement in such a case would be beyond the jurisdiction of the Collector and even if upon notice the occupancy tenant does not enter contest, his right in the property cannot be affected by any action of the Collector.
The learned single Judge thereafter referred to Baikuntha's case ((1971) 2 Cut WR 326) one of the two Bench decisions of this Court which we have dealt with at length above and on the authority of that case, it has been stated:--
'In view of the aforesaid principles well settled by the decisions of this Court it was for the plaintiffs to prove that in fact a settlement was made by the Collector in favour of plaintiff No. 1 settling the lands on it as the intermediary in khas possession. The plaintiffs should have proved that there was due service of public notice as enjoined upon by law, when the contesting defendant specifically challenged that he had no knowledge of such a proceeding and there was no due service of notice. If the plaintiffs failed to prove the settlement, then the title of defendants 5 and 6 as occupancy raiyats on the basis of their purchase from defendants 1 to 4 cannot be resisted............'
In the case before the learned single Judge, the settlement by the Collector as a fact was not proved. The order of the Collector was not before the court nor was the order-sheet of the case showing service of notice marked as an exhibit. These materials we have collected by referring to the original record. In that background, the learned single Judge was entirely justified in saying that the settlement had to be proved.
In the other case ( (1976) 42 Cut LT 143) one of us (Misra. J.) took note of the pleading in paragraph 6 of the plaint, which ran thus :--
'Under the circumstances even if the first defendant had obtained any declaration from the Estate Abolition Collector that he is the person in khas possession of the suit schedule lands and a recorded tenant, such a declaration by the Estate Abolition Collector is without jurisdiction, void, contrary to law; it is in exercise of jurisdiction in excess of the powers conferred under the Estates Abolition Act and as such ultra vires and illegal and not binding on the plaintiffs.'
The judgment proceeded to state :--'When such a challenge has been offered, it was for the defendant to show categorically that the settlement with him was in accordance with law. In the instant case, nothing has been done on behalf of the defendant in that regard. The learned Appellate Judge was not prepared to place the burden on the defendant for purpose of supporting the order. In a part of paragraph 6 of his judgment, he observed:--
'............Here the question arises as to on whom is the onus to prove that proper procedure under Section 8-A was followed. It is true that the person taking benefit under Section 8-A should prove this fact that proper procedures are followed. But in my opinion, not in all cases, had the plaintiffs specifically mentioned in the plaint that the order of the O.E.A. Collector is without jurisdiction, not being in conformity with the provisions of Section 8-A of the O.E.A. Act, the matter would have been something. But in absence of such pleading, it was their duty rather to bring to the notice of the Court that proper procedure was not followed. I would place another argument for this i.e. if no evidence would have been adduced, then what would have been the result I think on the basis of the document marked Ext. E, the Court has no other alternative than to dismiss the suit under Section 39 of the O.E.A. Act as settlement has already been made in the name of the defendant under the O.E.A. Act. In that view of the matter also, I feel it was the duty of the plaintiffs to prove that such document was not granted after compliance of provisions of law nor there can be any presumption that whatever official act was done was done in accordance with law,.......'.'
After extracting a part of the learned Appellate Judge's judgment, the learned single Judge proceeded to say:--
'The manner in which the lower appellate court has proceeded is definitely contrary to the law indicated in the case reported in Mallia Budhi Thakurani v. Udayanath Panda (AIR 1974 Orissa 194) .....'
We are inclined to think that in both the single Judge decisions, provision of Section 144 Illus. (e) of the Evidence Act was lost sight of. Section 114 of the Evidence Act provides:--
'The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the fact of the particular case.'
The statutory illustration under (e) is that the Court may presume that 'judicial and official acts have been regularly performed'.
In the case of Mohammad Akbar Khan v. Mian Musharaj Shah, AIR 1934 PC 217, the Judicial Committee took the view that where there was ample evidence of an attachment in the absence of direct evidence to the contrary, it must be presumed that all formalities were duly complied with. A Bench of this Court in the case of Ratha Harijan v. Narasingha Rana, AIR 1961 Orissa 22, held that where an attachment before judgment of land was made in accordance with some of the requirements of Order 21, Rule 54, Civil Procedure Code, but there was no evidence to show whether a prohibitory order had been passed on the defendants and whether any copy of the order was affixed at the court-house and also at the office of the Collector, then in the absence of any positive proof to the contrary, the normal inference would be that all the procedure prescribed by law was followed in making the attachment. To the same effect is the view of the Calcutta High Court in the case of C. L. Kiernander v. Benimadhab Khettri, AIR 1931 Cal 763. A Bench of the Punjab High Court in the case of Nishan Singh Harnam Singh v. The State, AIR 1955 Punjab 65, has further clarified that 'regularly performed' in the statutory illustration mean 'done with due regard to form and procedure'.
When the law is as indicated above, it does not follow that with a bare denial from the adversary, the entire burden, comes on the successful party before the Collector to uphold the settlement. The presumption under Section 114, Illus. (e) is a rebuttable one and once it is rebutted by the party challenging the settlement, the onus would certainly be on the successful party before the Collector to support the settlement. The observation to the contrary in the single Judge decisions (AIR 1974 Orissa 194 and (1976) 42 Cut LT 143) must be held to be bad. As we have pointed out, the decision in AIR 1974 Orissa 194, on its own facts was correct, though the law has been stated somewhat broadly yielding scope for confusion.
13. For convenience, we propose to reiterate our conclusions:--
(i) The notice under Section 8-A (2), Proviso of the Act is mandatory. The manner and form of notice is directory.
(ii) By the bare fact that the Collector had not selected the conspicuous; places where notice by posting of placards had to be given, the order of settlement does not become vitiated. It is open to the Collector to be satisfied on the basis of the service report that there has been substantial compliance with the provision and in such a case notice would be sufficient.
(iii) Reference to Rule 3 of the Estates Abolition Rules in the second of the Bench decisions (1973) 2 Cut WR 1026 was uncalled for as it had no application.
(iv) The two single Judge decisions (AIR 1974 Orissa 194 and (1976) 42 Cut LT 143) had omitted to take note of Section 114, Illus. (e) of the Evidence Act, and placing the burden on the successful party to prove the settlement upon a bare denial of the adversary is a proposition not supportable by law.
14. The second appeal should now go back to a learned single Judge for disposal. Parties would bear their own costs before us.
15. I agree.
P.K. Mohanti, J.
16. I agree.