V.V.S. Rao, J.
1. The petitioners are brothers. They are assailing the orders of the 1st respondent-Government of Andhra Pradesh, issued in Memo No. 19373/Assn. IV (1)/92-22, dated 10-10-2001, confirming the orders dated 1-4-1992 of the 2nd respondent-Chief Commissioner of Land Revenue. Be it noted that initially the 5th respondent-Mandal Revenue Officer, passed orders dated 28-6-1983 resuming the land assigned to the petitioners on the ground that the petitioners obtained the land by misrepresenting that they are landless poor persons, and the said orders were confirmed by the 4th respondent-Revenue Divisional Officer as well as the 3rd respondent-Joint Collector.
2. Briefly stated, the facts leading to the filing of this writ petition are as follows. The petitioners made separate applications to the Tahsildar, Kanekal, Anantapur District, seeking assignment of land which was declared as surplus under the provisions of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for brevity 'the Act'). By proceedings in DA No.559/ 86, dated 7-12-1987, the 1st petitioner and 2nd petitioners were temporarily assigned an extent of Ac.5-00 and Ac.4-00 of land comprised in Sy. No. 36-1 A and Sy. No. 36-1B of Raketla village, respectively, subject to any appeal or revision against the said assignment. Be it noted that admittedly the petitioners sought assignment of surplus land stating that they are residents of Raketla village, that they are landless poor persons and that they have no other source of income. Be it also noted that the assignment inter alia is subject to certain conditions, namely that the assignee shall pay to the Government a sum calculated at fifty times the land revenue in fifteen annual instalments, that the assignee shall cultivate the land personally, and that the assigned land shall not be alienated. It is the case of the petitioners that pattas were granted to them in the year 1977 itself, but the land owner (declarant) who held surplus land under the Act did not allow the petitioners to take possession of the land till September, 1981. Be that as it may, the 5th respondent vide his proceedings dated 28-6-1983, resumed the land assigned to the petitioners on the ground that the petitioners are not residents of Raketla village. Aggrieved by the same, the petitioners filed an appeal before the 4th respondent, who in his order dated 13-8-1984 noticed that the advocate appearing on behalf of the petitioners was not in a position to explain the case precisely, but only pleaded cancellation of the resumption orders issued by the Tahsildar. Nonetheless, the 4th respondent, upon verifying the record and also on noticing that his predecessor vide proceedings dated 19-10-1982 ordered resumption of the land for breach of the conditions of assignment, observed that under Para 37(4)(iii) of BSO15 the Mandal Revenue Officer can resume the assigned land. The 4th respondent noticed the following circumstances against the petitioners:
1. That the appellants are non-residents of the village Raketla.
2. That the appellants are employees drawing fat salaries working elsewhere far away from the village:
(i) Sri P. Leeladhara Prasad - Mechanic - Diesel Loco Shed, Guntakal.
(ii) Sri P. Damodhara Prasad - Sub-Editor, Andhra Prabha Express Compound, Bangalore.
3. That the appellants never entered into the lands and cultivated them at any time ever since the assignments were made.
4. That one Sri Katta Venkataramanappa of Raketla village cultivated the lands in 1981-82.
5. That the appellants do not have any residential houses in Raketla village.
6. That the show-cause notices sent to the appellants to their said respective official addresses by R.P.A.D. to Guntakal and Bangalore were duly delivered and acknowledged by them and their explanations thereon also were considered by the Tahsildar, Kanekal before the said orders were passed.
3. The 4th respondent on the premise that the petitioners failed to produce any evidence in support of their contention that they are landless poor persons, that they are in possession and enjoyment of the assigned land, and that they obtained the assignment by misrepresentation, confirmed the orders of the Tahsildar dated 28-6-1993.
4. Challenging the said order of the 4th respondent, the petitioners filed revision before the 3rd respondent, who vide proceedings in D.Dis.A4/9265/84, dated 23-10-1988, dismissed the revision. A further revision under the provisions of BSO 15 was filed by the petitioners before the 2nd respondent, who vide his proceedings in No. B(CW)3/3123/89, dated 3-1-1992, confirmed the orders of the 3rd respondent. Against the said order of the 2nd respondent, the petitioners filed yet another revision before the 1st respondent, who by reason of the order impugned in this writ petition, rejected the said revision.
5. Sri Srinivas Rao Bodduluri, the learned Counsel for the petitioners made elaborate submissions, and in support of his submissions, he placed reliance upon Rule 10 of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974 (for brevity 'the Rules') and the decision of this Court in M. Narayanamma v. Joint Collector, : 1995(3)ALT458 .
6. The learned Counsel for the petitioners submitted that the 5th respondent is not competent to resume the assigned land that enquiry report, which is the basis for cancellation of the assignment and resumption of land, was not supplied to the petitioners, and therefore, the principles of natural justice were violated. He would urge that assignment was cancelled on a ground which is irrelevant, and is therefore, contrary to Rule 10 of the Rules. The petitioners had Ac.5-00 of land in the year 1977, but the same was acquired by the Government in the year 1982, and therefore, the petitioners are landless poor persons, owning no land of their own.
7. After hearing the learned Counsel for the petitioners for a considerable length of time and after giving my anxious consideration, I am not persuaded by the contentions raised, and I am of the considered view that the writ petition is liable to be dismissed in limini for the reasons recorded infra.
8. Judicial Review is available against an administrative decision only when the petitioner pleads and demonstrates an illegality or irrationality or impropriety, which vitiates the impugned order. The power of judicial review, is however, subject to many limitations. When the statute entrusts the final adjudication of facts to an administrator, the Court of judicial review does not (unless there are extraordinary circumstances) interfere with the findings of facts for the simple reason that the collection and appreciation of evidence is not in most cases, the province of the Court of judicial review. This is one of the main limitations. It does not, however, mean that the High Court exercising power of judicial review is totally denuded of the power to examine and evaluate the basic jurisdictional facts. A reference may be made to a judgment of the Division Bench in Pennar Delta Ayacutdars Association v. Govt. of Andhra Pradesh, 2000 (3) ALD 724, to which I was a member. After referring to the decisions of the British Courts in Chief Constable of the North, Wales v. Evans, (1982) 3 All ER 141 and Council of Civil Service Unions v. Minister of Civil Services, (1984) 3 All ER 935, as well as the decision of the US Supreme Court in Universal Camera Corporation v. National Labor Relations Board, (1950) 340 US 474 = 95 Law Ed 456, and the judgements of our Supreme Court in State of U.P. v. Dharmander Prasad Singh, : 1SCR176 , S.R. Bommai v. Union of India, : 2SCR644 and Tata Cellular v. Union of India, : AIR1996SC11 , this Court held as under:
It is well settled that while exercising the power of judicial review under Article 226 of the Constitution, we are more concerned with the decision making process than the decision itself. In doing so, it is often argued by the defender of the impugned decision that this Court is not competent to exercise its power when there are serious disputed questions of facts, when the decision of the Tribunal or the fact finding body or the arbitrator is given finality by the statute which governs a given situation or which by nature of the activity the decision maker's opinion on facts is final. But while examining and scrutinising the decision making process it becomes inevitable to also appreciate the facts of a given case as otherwise, in our considered opinion, the decision cannot be tested under the grounds of illegality, irrationality or impropriety. How far the Court of judicial review can reappreciate the findings of fact depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well-neigh impossible for this Court to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to the prima facie conclusion or plausible conclusion and then testing the decision of the authority on the touchstone of the tests laid down by the Court with special reference to a given case. This position is well settled in Indian Administrative Law.
9. Therefore, the questions whether the assignment was made in the year 1977 or December, 1981, whether the petitioners were landless poor persons by reason of acquisition, of their land in the year 1982, and whether the petitioners at the relevant point of time were employees or not, are all pure questions of fact, which cannot be gone into in writ proceedings under Article 226 of the Constitution of India. The conclusions recorded by all the officers in the hierarchy of revenue administration, right from the Tahsildar, Revenue Divisional Officer, Joint Collector, Chief Commissioner of Land Revenue and the Government of Andhra Pradesh, must be treated as conclusive and cannot be reopened before this Court.
10. I may now consider the grounds raised by the learned Counsel for the petitioners one by one. Insofar as the question of competency of the 5th respondent to resume the land is concerned, a reference may be made to the well considered order dated 23-11-1998, passed by the 3rd respondent, confirming the order of the appellate authority respondent. Before the 3rd respondent, the petitioners raised the following grounds:
1. The order of the Tahsildar, Kanekal, in resuming the land for violation of the condition of the grant is without any jurisdiction.
2. The Tahsildar, Kanekal, as well as the Revenue Divisional Officer, Dharmavaram, has failed to see that the R.Ps. were qualified for the assignment in the year 1977, and subsequently employed cannot be a violation of the condition at all.
3. The circumstances under which one Katta Venkataramanappa original owner of the land continued in possession by the orders of the civil Court has not at all been considered or taken into consideration in assessing the contention of the petitioners that they could not cultivate the land.
4. The Tahsildar, Kanekal, has not followed the procedure prescribed for resumption of land. No notices were issued and on the other hand, the orders were passed straightaway.
11. The 3rd respondent dealing with the question of jurisdiction of the 5th respondent concluded as under:
Now so far as ground of R.P. are concerned, the first ground is that the Tahsildar, Kanekal has no jurisdiction to resume the land is not correct. The Revenue Divisional Officer in his proceedings has mentioned that in view of the breach of conditions, the land can be resumed by the Tahsildar himself under the provisions of B.S.O.15 Para 37(4)(iii). The Tahsildar, Kanekal, has resumed the land only on the order given by the Revenue Divisional Officer, Dharmavaram in his Rc.B/7411/82, dated 19-10-1982 as per the provisions of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974. Under Rule 10(5), the Revenue Divisional Officer is competent to cancel the allotment made irregularly or direct the Tahsildar to resume the land. In the present case, the Tahsildar, Kanekal, has acted upon the direction given by the Revenue Divisional Officer, Dharmavaram, for resumption of the lands.
12. The 3rd respondent also noticed that the show-cause notices sent by the Tahsildar were served on the petitioners at their respective addresses at Bangalore and Guntakal, and that the 1st petitioner was working as Sub-Editor, Andhra Prabha, Express Compound, Bangalore, and that the 2nd petitioner was a Mechanic in Diesel Locoshed at Guntakal in the Railways. He also noticed that the petitioners did not enter the land and did not cultivate the land for about six years, and that they did not even approach the competent authority seeking permission for cultivation. This Court has no reason to disagree with the conclusions arrived at by the 3rd respondent, which were approved and confirmed by the 2nd respondent as well as the 1st respondent by the impugned order. The contention of the petitioners, therefore, that they are landless poor persons and their occupation either as Sub-Editor in Newspaper or Mechanic in Railways, does not debar them from holding of the assigned land, is also without any substance.
13. The learned Counsel for the petitioners in support of his contention that the provisions of BSO15 have no application and that the assignment of the surplus land or cancellation thereof has to be made in accordance with the provisions of the Act and the Rules, placed strong reliance upon Rule 10 of the Rules. The Act requires every person holding agricultural land to file a declaration under Section 8 thereof. The Land Reforms Tribunal, shall have to determine the ceiling area under Section 9 of the Act read with the Rules. When surplus land is determined, it has to be surrendered and the Government has to take possession thereof under Section 10 of the Act. Under Section 11 of the Act, the surrendered land absolutely vests in the Government free from all encumbrances. Therefore, when the land absolutely vests in the Government, the same is no different from any other assignable Government poramboke land. However, when the land is assigned, the Government and its officials have to follow the procedure contemplated under Section 14 of the Act and Rule 10 of the Rules. Paraphrasing Section 14, it must be noticed that the lands vested in the Government under the Act shall be allotted for use and allotment of house sites for agricultural labourers, village artisans or houseless poor persons. The land may also be allotted for the purpose of agricultural or for the purposes ancillary thereto subject to assignee/grantee paying certain amount in 15 annual instalments. The provisions of Sub-sections (4) and (5) of Section 14 of the Act, which are relevant, read:
14. Disposal of land vested in Government:
4. Any transfer of the land under this section shall be subject to
(i) the condition that the land shall not be alienated by the transferee by way of sale, gift, mortgage, lease or in any manner whatsoever otherwise than by way of mortgage in favour of the Government, a bank or a cooperative society, including a land mortgage bank; and
(ii) the condition that where the land transferred is an orchard, the transferee shall continue to maintain such land as an orchard; and
(iii) such other condition as may be prescribed.
5. Any alienation effected or other act , done in respect of any land in violation of the conditions specified in Sub-section (4) shall be null and void; and the Revenue Divisional Officer shall resume the land after giving an opportunity to the persons affected of making a representation in this behalf.
Rule 10 of the Rules deals with disposal of lands vested in the Government. Sub-rule (1) thereof reads:
(1) Subject to the reservations provided in the Act, land vested in the Government under the Act, shall be allotted by the Tahsildar for use as house-sites for agricultural labourers, village artisans or other houseless poor persons; or shall be transferred to landless poor persons for purposes of agricultural or for purposes ancillary thereto in the following manner:
(i) displaced tenants having no land;
(ii) landless poor persons; and
(iii) other poor agriculturists;
Provided that in respect of each category of persons referred to in Section 14 of the Act and in this rule priority shall be given to persons locally residing and further from among whom priority shall be given to an ex-servicemen and a widow of a person employed in the armed forces and who died in a war belonging to that category;
Provided further that in respect of land surrendered by a co-operative society, firm or company and vesting in the Government, preference shall, as far as may be practicable, be given to a landless poor person or other poor agriculturist who, as a share holder of such co-operative society, or company or as a partner of such firm was cultivating such land on the specified date;
Provided also that land surrendered in the Schedule Areas shall not be allotted or transferred to persons other than members of the Scheduled Tribes.
14. Sub-rule (2) prescribes the maximum extent of land that can be assigned, and Sub-rule (3) lays down the procedure to be followed for allotment or assignment of Government lands for use of house-sites or for purposes of agriculture shall mutatis mutandis apply to the allotment or transfer of lands under the Rules. Therefore, wherever the Act and the Rules are silent, the revenue officials have to follow BSO15, which deals with allotment/assignment of agricultural land and/ or BSO21, which deals with allotment of house-sites.
15. The clause (2) of para 2 of BSO15 defines 'landless poor person' as one who owns not more than two and a half acres of wet or five acres of dry land and is also poor. By the very definition, a person who is not poor, but is landless, is not eligible for assignment of the land. Indeed Rule 10(1) of the Rules obliges the Talisildar to allot surplus land to displaced tenants having no land, landless poor persons, and other poor agriculturists in that order. A person, therefore, must be poor before seeking assignment of surplus land and also must be landless person. In this background, reliance placed by the learned Counsel for the petitioners on Rule 10 of the Rules in support of his contention that BSO15 has no application, is misconceived and cannot be accepted. Admittedly, both the petitioners were employed, and admittedly the petitioners family (petitioners father) was having Ac.5-00 of land as on the date of assignment of the land, and therefore, the petitioners were not eligible for assignment of surplus land. The petitioners obtained the assignment of the land by misrepresentation. It is well settled that non-disclosure of facts which are relevant for the exercise of power when there is such an obligation on the person seeking benefit, would amount to misrepresentation. This aspect of the matter was well considered by all the authorities whose decision is impeached in this writ petition.
16. The judgement of this Court in M. Narayanamma has no application to the facts of the case. Sub-rule (5) of Rule 10 of the Rules enables the Revenue Divisional Officer to resume the land if the assignee violates any of the conditions of allotment or transfer, including the condition of payment of the amount as per Sub-section (2) of Section 14 of the Act as well as the conditions of assignment/grant that the assignee should cultivate the land and must also be resident of the village. Cancellation or resumption of assigned land on the ground of misrepresentation cannot be said to be contrary to Sub-rule (5) of Rule 10 of the Rules also. The petitioners never cultivated the land, and as noticed by the 3rd respondent in his proceedings dated 23-10-1988 as well as the 2nd respondent in his order dated 3-1-1992, there is no infirmity in the order passed by the Tahsildar resuming the land assigned to the petitioners, and the same cannot be said to be contrary to Rule 10(5) of the Rules. The petitioners were given show cause notice. Their explanations were also considered and appropriate orders were passed by the 5th respondent as well as the 4th respondent in appeal. The inference drawn by various authorities that the petitioners obtained the assignment by misrepresentation is unassailable.
17. All acts, omissions, and concealments, which involve a breach of legal or equitable duty, trust or confidence which are injurious to another amount to fraud. Therefore, a misrepresentation may become fraudulent whether or not such misrepresentation is made with or without intention to commit fraud. Any benefit obtained by misrepresentation by express act or omission is liable to be withdrawn. Similarly, there is a misrepresentation if a man represents not the whole of the facts, but only a portion, and omits what he ought to have known was a very material fact. It is an untruthful representation by reason of suppression and concealment of truth, not untruthful in the sense of direct falsehood, but untruthful because it is intended to convey to the public an impression different from the reality. (See 'Kerr' on the law of 'Fraud and Mistake' 7th Edition, First Indian Reprint 1997, pp.1 and 45). It is axiomatic that fraud and misrepresentation unravel every administrative decision, and that law of limitation has no application when the administrator withdraws largesse or benefit from an individual which was obtained by fraud or misrepresentation. A reference may be made to the judgment of Sri PA. Choudary, J., in In Re P. Shyam Rao, 1984 (2) ALT 386, wherein it was observed:
Where no innocent third party interests have crept in and where the nature of fraud or misrepresentation is so glaring and patent crying out for judicial correction and where the assignee himself was a privy to the fraud played on the State, it becomes the duty of the authority to take action immediately the fraud is detected and discovered ......................................... This Courtshould not support the contention which will have the effect of alienating any Government land in favour of those who having more than 13 to 20 acres each had obtained assignments on the basis that they were landless poor. The theory of arbitrary cancellation and the improper exercise of jurisdiction, are all in my opinion, inapplicable to a case of this nature. This must have been the real reason why the assignees had never appeared before the Tahsildar and never contested the matter before him inspite of the service of notices on them. Having thus deliberately avoided the inquiry conducted by the Tahsildar, the assignees cannot now be heard to say that the inquiry itself was illegal and arbitrary.
18. A further reference may be made to a decision of the Full Bench of this Court in A.P. Scheduled Tribes Employees Assn. v. Aditya Pratap Bhanj Dev, : 2001(6)ALD582 , to which I was a member. The Full Bench after referring to various decisions of the High Courts and the Apex Court, summarised the principles of law in relation to fraud and misrepresentation as follows:
1. In judicial proceedings, fraud renders a judgment of a Court a nullity and void. Either superior or inferior Court is bound to treat a judgment obtained by playing fraud on the Court a nullity.
2. In proceedings other than judicial, an order obtained by fraud and misrepresentation and/or a determination as a result of fraud cannot be allowed to stand. Fraud unravels everything, and no person can keep an advantage or benefit or privilege obtained by playing fraud.
3. In the field of private law, mere misrepresentation without proof of deceit or intention to deceit cannot vitiate the contract or render the contract void; it is only voidable. In the field of public law, however, fraud on public authorities is a special species of fraud, which without anything further must deny the person the benefit obtained by fraud. Whether intention or no intention, whether mala fide or bona fide, public law does not permit a person to retain the advantage obtained by fraud.
4. The concept of fraud on the statute and fraud on the Constitution has similarities more than one. Any action, which subverts the objects and purposes of the Constitution, amounts to fraud on the Constitution.
5. A person who does not belong to SC/ ST/BC secures appointment to an office or post under the State or public employment by producing fake certificate must be held guilty of playing fraud on the Constitution, and such person shall not be entitled to plead doctrine of promissory estoppel or equitable estoppel.
6. The principle of 'finality of litigation' cannot be pressed when fraud is alleged to be the basis for the decision/ determination.
7. Fraud can be challenged in any Court even in collateral proceedings. The principle of estoppel and doctrine of res judicata have no application when fraud is the basis of judgment sought to be nullified under which right or privilege is claimed.
8. Fraud can either be proved by established facts or inference can be drawn from admitted and/or undisputed facts. When fraud is inferred under Section 44 of the Indian Evidence Act, 1872, the Court as well as the authority alleging fraud can ignore a decision obtained by fraud.
19. All the authorities have rightly held that the petitioners have obtained assignment of Government land by misrepresentation though they were not entitled for assignment by reason of their family already having an extent of Acs. 5.00. No interference is called for in these proceedings under Article 226 of the Constitution of India. Accordingly, the writ petition is dismissed.