P.K Nayak, J.:— The Petitioners in this writ application challenge the legality & propriety of the Order Dated 25.04.1998 (Annexure-8) passed by the Learned Additional District Magistrate, Khurda in O.E.A Appeal No. 3 of 1993.

2. The facts of the case, as averred in the writ application are that the Petitioners’ late father Brajabehari Mishra & late mother Arnapurna Mishra jointly applied to Opp. Party No. 4-deity, Lord Lingaraj Mahaprabhu through its Trust Board for permanent lease of the disputed land & paid the salami on 10.08.1954 Since the property in question was the Trust Estate of the deity, the Commissioner of Endowments accorded permission for permanent lease of the land under Section 19 of the Orissa Hindu Religious Endowments Act,1951 (in short ‘OHRE Act’), as per order No. 403/986 P (J) dated 16.08.1955 in O.A Case No. 106 of 1952-53. Since then this Petitioners’ parents were in possession of the land & paying rent to the temple authorities till vesting of the Trust estate of the deity in 1974 in the State Government under Section 3-A (1) of the Orissa Estates Abolition Act,1951 (in short ‘O.E.A Act’). On vesting of the estate the parents of the Petitioners, who were permanent tenants under the deity, became permanent tenants under the State Government under the provision of Section 8(1) of the O.E.A Act. It is further asserted that after the vesting Opp. Party no A deity filed a claim case under Sections 6 & 7 of the O.E.A Act on 04.08.1975 for settlement of the disputed land in its favour alleging that the deity is in khas possession of the disputed land. The said claim application was registered as Nij Dhakhal Case No. 378 (T) of 1974. It is stated that in the said proceeding, without proclamation of public notice inviting objection as required under first proviso to sub Section (2) of Section 8-A of the O.E.A Act from persons interested, the Tahasildar-O.E.A Collector allowed the claim of Opp. Party No. 4 by Order Dated 04.11.1980 Before passing of such order no notice had been given to the parents of the Petitioners, who had absolutely no knowledge about such proceedings or the order of settlement passed therein till 20.12.1983 On coming to know about the passing of such order of settlement in favour of Opp. Party No. 4, the parents of the Petitioners filed O.E.A Appeal No. 1 of 1984 before the Additional District Magistrate, Bhubaneswar (Opp. Party No. 2) challenging such settlement order. By Order Dated 23.2.1989 (Annexure-1), the Additional District Magistrate, allowed the appeal, set aside the settlement order passed by the Tahasildar & remitted the case back to the Tahasildar (Opp. Party No. 3) directing that the original lessees shall file their objection within one month from the date of the order & the Tahasildar shall dispose of the claim case within six months. The A.D.M, did not go into the question whether the original lessees have become occupancy rayats under the State Government by operation of Section 8(1) of the O.E.A Act, which was raised by the Appellants & left the same open to be considered by the O.E.A Collector-Tahasildar, The lessees (parents of the Petitioners) filed objection before the O.E.A Collector on 26.06.1989 The case suffered gome adjournments at the stage of hearing & was ultimately posted to 04.12.1989 on which date the Executive Officer of Trust Board, who was representing Opp. Party no A, remained absent for which the claim was dismissed for default vide order under Annexure-2. Thereafter on 02.01.1990, the Additional Executive Officer of Opp. Party No. 4 filed a petition before the O.E.A Collector for restoration of the claim case taking the plea that on 04.12.1989 to which date the claim case was fixed for hearing, he had come to the High Court for which he could not remain present before the O.E.A Collector. Ultimately, the restoration application was heard on 06.05.1990 & it was posted to 07.06.1994 for orders. Instead of passing final orders on 07.06.1990, the O.E.A Collector on that day directed the Executive Officer of Opp. Party No. 4 to file an affidavit mentioning the case number in connection with which he had come to the High Court & the matter was adjourned again to 26.6.1990 for passing final orders on the restoration application. The Order Dated 07.06.1990 has been annexed as Annexure-3. The Executive Officer did not file any affidavit on 26.06.1990 & the O.E.A Collector having remained busy otherwise, the matter was adjourned to 20.07.1990 & again to 30.07.1990 Even by 30.07.1990 no affidavit was filed & even on that date the Executive Officer-Opp. Party No. 4 did not choose to, appear despite repeated calls &, therefore, the O.E.A Collector passed order on that day vide Annexure-4 dismissing the restoration application for default & for non-compliance of earlier Order Dated 07.06.1990 Thereafter on 30.11.1991, the Executive Officer of Opp. Party No. 4 filed another petition under Order 9, Rule 9 of read with Section 151, C.P.C for restoration of the restoration petition filed earlier on 02.01.1990, which was dismissed for default by order under Annexure-4, along with a petition for condonation of delay on grounds inter alia that the Additional Executive Officer lost track of the case on 20.07.1990 as the O.E.A Collector did not hold Court on that day & that the further date of posting of the restoration application was not within the knowledge of the claimant. It is stated that on the date of filing of second restoration application, i.e, on 30.11.1991, the records being not available with the O.E.A Collector, as the same had been transmitted to the Member, Board of Revenue in connection with another case, the O.E.A Collector endorsed on the body of the restoration application that the matter would be taken up after receipt of the original records from the Board of Revenue. The restoration petition dated 30.11.1991 with the endorsement of the O.E.A Collector has been filed as Annexure-5. Although nothing was decided by the O.E.A Collector on the second restoration application, Opp. Party No. 4 however on the very day filed an appeal before the Additional District Magistrate against the direction of the O.E.A Collector endorsed on the body of the petition. The said appeal was registered as O.E.A Appeal No. 2 of 1991, which was ultimately disposed of by the A.D.M, on 06.07.1992 by order under Annexure-6 holding that since the matter was sub-judice before the O.E.A Collector-cum-Tahasildar, the appeal was premature & it was inappropriate to interfere with the matter pending before the O.E.A Collector. Ultimately, the second restoration application was taken up for hearing by the O.E.A Collector on 12.4.1993 & on the same date vide order under Annexure-7 it was dismissed mainly on the ground of non-compliance of the earlier Order Dated 07.6.1990 directing Opp. Party No. 4 to file an affidavit. It was further held that the claimant (Opp. Party No. 4) was deliberately negligent & delaying disposal of the case on flimsy grounds. It was held that there was no sufficient Cause to allow the second restoration application. Challenging the Order Dated 12.4.1993 (Annexure-7), the claimant filed O.E.A Appeal No. 3 of 1993 before the Additional District Magistrate, Bhubaneswar purportedly under Section 9(1) of, the O.E.A Act. Initially the Petitioners filed this writ application challenging the maintainability of the second restoration application as well as the maintainability of O.E.A Appeal No. 3 of 1993. However, during the pendency of the writ application the said appeal was disposed of by the A.D.M by his Order Dated 25.4.1998 (Annexure-8) by allowing the appeal & remanding the matter to O.E.A Collector, Bhubaneswar for fresh adjudication with the following observations:

“Heard both. Went through the case record, this case has a chequered career as the case has been agitated at the Appellate forum, one revisional forum & before the Hon'ble High Court. This appeal has been filed on the ground that, the direction given by the Appellate Court to restore the case as is found from plaint has not been heard & disposed of as per the provision of law. The OEA Collector was advised to hear the parties & to dispose of the case after due opportunity to the parties. It is found that the case was posted to 6.11.89 The OEA Collector could not hear the case & posted to 4.12.89 for further hearing, as record reveals. They have not been heard nor their case has been properly enquired into In the foregoing discussion & after hearing the parties & perusal of lower Court case record, I am inclined to hold that the order of the OEA Collector dated 4.12.1989 is bad in the eye of law. Subsequent order is also vitiated the entire proceedings. Accordingly, the same are set aside. The matter is remitted back to the OEA Collector, Bhubaneswar for fresh adjudication after giving due opportunity to the parties interested & giving due regard to the orders of the Hon'ble Member, B.O.R, Hon'ble High Court & of this Court. The case be disposed of within six months in accordance with law. With the above observation the appeal is disposed of accordingly. In result the appeal is allowed. Return the L.C.R Send extract of orders to OEA Collector-cum-Tahasildar, Bhubaneswar.”

3. By virtue of amendment of the writ application, the Appellate order under Anenxure-8 has been assailed by the Petitioners. The main plank of argument of the Petitioners is that since the Petitioners’ predecessors-in-interest were lessees in respect of the disputed land under Opp. Party No. 4, the deity was not in khas possession on the date of vesting of the, Trust estate including the disputed land &, therefore, the O.E.A claim case filed by the deity was not at all maintainable &, further that Order 9, Rule 9, C.P.C does not apply to a proceeding under the O.E.A Act., & therefore, the second restoration application filed by the Executive Officer of the deity was not maintainable & further that the order passed by the O.E.A Collector dismissing the second restoration application was not an appealable order under the provision of Section 9(1) of the O.E.A Act., which was taken recourse to for filing the appeal therefore, the A.D.M had no jurisdiction & power to entertain O.E.A Appeal No. 3 of 1993 & to pass the impugned order. Opp. Party No. 4-deity has filed a counter affidavit through its Executive Officer contending inter alia that even though the Commissioner of Endowments passed order on 22.05.1955 permitting for transfer of the case land by way of lease in favour of Sri B.B Mishra & Smt. Arnapurna Mishra, the parents of the Petitioners, & the proposed lease was purportedly for construction of residential house, no lease deed having at all been executed by the deity, the parents of the Petitioners did not become lessees or tenants under the deity. Thus, the lease sanction order of Commissioner of Endowments was never acted upon. The alleged receipt of salami by the deity in respect of the lease & the alleged grant of receipt dated 10.08.1954 has been disputed on the ground that no such receipt could have been granted since the order of the Commissioner of Endowments permitting the lease was much subsequent to the date of grant of receipt. It is also stated that the deity challenged the notification of vesting in OJC No. 1075 of 1974 in which this Court passed order of status quo which continued till 1977, when the Writ Petition was ultimately withdrawn. It is also stated that the management of the deity has not submitted Ekpadia in favour of the parents of the Petitioners since they were not tenants under the deity on the date of vesting. Lastly, it is contended that since the land in question was not leased out in favour of the parents of the Petitioners, it was Nizdakhali land of the deity & shall be deemed to be settled in the name of the deity-intermediary as per the claim application made within the statutory period.

4. Within the ambit of the writ application, this Court is not called upon to decide the respective claims of the parties on merits. In other words, it is not within the scope of the writ application to adjudicate whether the land in question was to be settled in favour of the deity (Opp. Party No. 4) in terms of its original application under Section 8-A (1) of the O.E.A Act or whether the parents of the present Petitioners were already in possession of the case land as tenants on the date of vesting as per their objection filed before the O.E.A Collector in opposition to the deity's claim for settlement. The limited question that arises for consideration is whether the second restoration application filed by Opp. Party No. 4 on 30.11.1991 was maintainable & whether O.E.A Appeal No. 3 of 1993 filed against the order under Annexure-7 dismissing the said second restoration application was maintainable & whether the impugned order under Annexure-8 passed by the Learned Additional District Magistrate in O.E.A Appeal No. 3 of 1993 is sustainable.

5. Section 8-A (1) provides for filing of claim application for settlement under Sections 6 & 7 of the O.E.A Act. Under sub Section (4) of Section 8-A any person disputing the claim for settlement under Sections 6 & 7 may file an objection before the O.E.A Collector within three months from the date of public notice given under sub Section (2) & the Collector shall prior to the determination regarding settlement under Sections 6 & 7 enquire into the matter in the prescribed manner. Under Section 42, the O.E.A Collector for the purpose of enquiry under Section 8-A has power to summon & enforce attendance of witnesses & compel production of documents in the same manner as is provided in the case of Civil Court. For the purposes of Sections 193,196 & 228 of the Penal Code the proceeding before the Collector is deemed to be a judicial proceeding.

6. As per the provision of Rule 6 of Orissa Estates Abolition Rules, 1952 (in short the ‘Rules’) a claim application under Section 8-A (1) of the Act shall be filed in Form ‘H’ of the Schedule giving complete & accurate statement & description of the lands & that such application shall be verified in the manner prescribed for verification of a plaint under the Code of Civil Procedure. As per Rule 7-B the enquiry to be conducted on a claim application shall be of a summary nature after issuance of notice to the parties to appear before the O.E.A Collector with their witnesses & documents in support of the respective claims. The Rules also provides for issuance of summons by the Collector for appearance of any witness or production of any document at the cost of the party, who desires such summons to be issued. There is also provision that the O.E.A Collector may depute an Officer to make local enquiry, if he thinks fit, & the report of the Officer shall form part of the records.

7. All the above provisions of the Act & the Rules go to indicate that the proceeding under Section 8-A (1) is quasi judicial in nature. The procedure for conduct of the proceeding has been provided in the Act & the different Rules as noted above. There is no provision in the Act or the Rules making the provisions of the Code of Civil Procedure applicable for conduct of the proceeding under Section 8-A(1) except the one which mandates applicability of C.P.C only with regard to verification of the claim application like a plaint.

8. Neither the Act nor the Rules makes any provision as to the remedy available to a claimant of the proceeding where the claim application is dismissed for default.

9. Dealing with the powers of the forum under the Consumer Protection Act,1986 to restore a proceeding dismissed for default, the Supreme Court of India in the case of New India Assurance Co. Ltd.R. Srinivasan; 2000 (2) SCALE 131 held as follows:

“18. We only intend to invoke the spirit of the principle behind the above dictum in support of our view that every Court or judicial body or authority, which has a duty to decide a list between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing & the party is not present, the Court or the judicial or quasi-judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the Court or, for that matter, of judicial or quasi-judicial body. In the absence of the complainant, therefore, the Court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power & jurisdiction to restore the complaint on good cause being shown for the non-appearance of the complainant.”

10. While dealing with the power of Central Industrial Tribunal to set aside an ex parte award, the Supreme Court in the case of Grindlays Bank Ltd.The Central Government Industrial Tribunal; 1980 Supp SCC 420 : AIR 1981 SC 606 held as under:

“6. We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so but it is a well-known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary.”

11. Similarly in the case of J.K Synthetics Ltd.Collector of Central Excise; 1996 (86) E.L.T 472 (S.C) dealing with the powers of the Customs, Excise & Gold (Control) Appellate Tribunal (CEGAT), the Apex Court held that though Rule 21 of CEGAT (Procedure) Rules,1982 does not expressly state that an order on an appeal heard & disposed of ex parte can be set aside on sufficient cause for the absence of the Respondent being shown does not mean that CEGAT has no power to do so. If, in a given case, it is established that the Respondent was unable to appear before it for no fault of his own, the ends of justice would clearly require that the ex parte order against him should be set aside. Not to do soon the ground of lack of power would be manifest injustice.

12. In the light of the dicta of the Apex Court laid down in the aforesaid decisions, it must be held that the O.E.A Collector possesses such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties & for that matter, it has the power to dismiss for default a claim application for the absence of the claimant on the date of enquiry so also to restore such dismissed claim on being satisfied about existence of good & sufficient ground for non-appearance of the Claimant on the date of dismissal, even though the O.E.A Act or Rules do not specifically provide for such power to the Collector or that Order-9, Rule-9, C.P.C does not apply. The contention of the Petitioners that application for restoration of earlier application dismissed for default was not entertainable by the Collector, therefore, stands rejected.

13. Now the question is whether an appeal within the ambit of Section 9 of the O.E.A Act against an order of the Collector rejecting an application for restoration of the proceeding is maintainable? Sub Section (1) of Section 9 which provides for appeal against an order passed under Section 8-A of the Act runs as under:

“9. Appeal against Collector's order under Sections 5, 6 or 7-(1) An appeal against any order of the Collector under Sub-Section (4) of Section 3-B, clauses (h), (i) & (k) of Section 5, sub-Section (1) of Section 6 or 7, sub-Section (3) of Section 8 & sub-Sections (3) & (4) of Section 8-A, if preferred within sixty days of such order shall lie to the Board of Revenue which shall dispose of the appeal according to the prescribed procedure.

Provided that if such order is passed by an Officer, other than the Collector of the district, appeal if preferred within sixty days of such order shall lie to the said Collector, who shall dispose of the appeal according to the same procedure as is prescribed for disposal of such appeals by the Board of Revenue.

Explanation-The Collector of the District referred to in the proviso shall for the purpose of this sub-Section includes 3 [xxx] the Additional District Magistrate of the District.”

14. Right to appeal is a creature of statute. Unless a statute permits an appeal to be filed against an order, no appeal there against can be entertained. The tenor & ambit of Section 9(1) of the Act shows that it is a final order on a claim raised under Section 8-A(1) against which an appeal can be preferred. The Appellate power does not contemplate entertaining an appeal against any interim order or any other order, not being a final order in the proceeding, such as one either allowing or rejecting an application for restoration of a proceeding dismissed for default. In such view of the matter, we are of the opinion that O.E.A Appeal No. 3 of 1993 filed before the Additional District Magistrate under Section 9(1) of the Act was not maintainable & therefore, the Appellate order under Annexure-8 passed in such appeal must be held to be non est in the eye of law. Besides, it is amply clear that the order under Annexure-8 is nothing but a bundle of confusions & without reference to the ground of rejection of the application for restoration filed by Opp. Party No. 4.??? In the circumstances, we quash the Appellate order under Annexure-8. Before parting we make it clear that this Court has expressed no opinion with regard to the merits of the claim of Opp. Party No. 4 & the objection filed before the Collector by the predecessors-in-interest of the present Petitioners. The writ application is accordingly disposed of. No costs.

B.P Das, J.:— I agree.