Smt. Gondalapu Victoria, vs The State Of Andhra Pradesh,
2022 Latest Caselaw 4442 AP

        HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                           I.A.No.1 of 2021
                                    In
                   Rev.W.P.M.P.No.38831 of 2016
                                    in
                         W.P.No.41177 of 2014
ORDER :

This review application has been filed by the State of

Andhra Pradesh seeking review of the order passed in Review

WPMP.No.38831 of 2016 dated 14.10.2016 in W.P.No.41177 of

2014.

This Court has heard extensive and long arguments

advanced by the learned Government Pleader for Land

Acquisition and Sri P. Veera Reddy, learned senior counsel for

the petitioners. The proceedings are relating to land acquisition

of the Telugu Ganga project. The first order was passed in

W.P.No.41177 of 2014 on 07.09.2016 and in review application,

this order was a modified on 14.10.2016. To avoid confusion

the parties are referred as writ petitioners and State.

Learned Government Pleader submits that State is

compelled to seek this Court's assistance because of what he

says is 'fraud' that was committed by the writ petitioners.

Learned Government Pleader for the State submits that

after the writ petition was ordered on 07.09.2016, notices were

issued to the writ petitioners to appear before the competent

authority. They appeared and after considering their

submissions etc., their request for payment of compensation or

ex gratia was negatived. Learned Government Pleader submits

that the authorities came to a conclusion that the writ

petitioners have falsely claimed compensation/ex gratia on the

basis of created, fabricated documents. He points out that the

rationale and reasons for the State to come to the conclusion are

described in para 11(a) to 11 (k) of the present affidavit.

Learned Government Pleader goes through each of the said

paragraphs and argues that the documents produced by the writ

petitioners in the writ petition did not emanate from the

Government Office and that many of them are lacking the official

seal, signatures and or other necessary ingredients which could

authenticate the documents. Some of the documents are not

even received in the petitioners' Office. Therefore, he submits

that after conducting a detailed enquiry, the Joint Collector has

given a report dated 29.01.2021, wherein the State came to a

conclusion that the writ petitioners have relied upon many

fabricated documents. He relies upon the case law on the

subject including the judgment in A.V.Papayya Sastry v.

Government of Andhra Pradesh1 and other judgments like

Andhra Pradesh Scheduled Tribes Employees Association v.

Aditya Pratap Bhanj Deve and others2 to argue that fraud

unravels the entire transaction. The said judgment is enclosed

as a material paper. Learned counsel submits that this

judgment of the Hon'ble Supreme Court is applicable to the facts

1 AIR 2007 SC 1546 2 2001 SCC Online AP 988

and as fraud unravels all the transactions including solemn

judicial orders, this Court should recall the order dated

14.10.2016 in Review WPMP.No.38831 of 2016. He argues that

the position of law is clear and that fraud renders a

judgment/order a nullity.

In reply to this, Sri P.Veera Reddy, learned senior counsel

submits that the State cannot unilaterally decide that fraud was

played and seek recall of a review order passed on 07.09.2016.

He points out that the present application was affirmed and filed

in February, 2021 after huge gap and that on one or the other,

the State is denying the compensation due to the writ

petitioners. Learned senior counsel also argues that there is no

power available with the Court to 'recall' an order. He points out

that both in the original writ and in the review order also, the

Government Pleader appeared and argued the matter. They

cannot therefore contend that they did not have an opportunity

to argue the same. He also points out that C.C.No.1154 of 2019

was filed and this Court found all the Officers guilty of

contempt. He points out that in the course of hearing of the

Contempt Case etc., the issue of fraud was not raised. Learned

senior counsel also points out that apart from the documents

relied upon by the State in the present affidavit there are other

documents, other recommendations etc., made by the

responsible officials of the State for the payment of the

compensation. He points out that these documents are not even

classified or commented upon as fraud unilaterally. Learned

senior counsel submits that the review itself is an extra ordinary

remedy which can be granted on limited grounds. Now they are

seeking recall or review of an earlier order of review. Learned

senior counsel finally submits that fraud is a matter of pleading

and proof and in an affidavit filed like in the present case, this

Court cannot return a finding on fraud or even a prima facie

finding on fraud. Lastly, he relies on the case of Asit Kumar

Kar v. State of West Bengal and others3 at para 6 to bring

out the distinction between recall/review etc.

This Court after considering the submissions has to agree

that fraud would unravel everything. Even the most solemn acts

including judicial orders if obtained by fraud can be set aside,

reviewed and modified etc. The purity of justice system cannot

be tainted by fraud. This part of the submission of the learned

Government Pleader is acceptable.

However, the larger question is the pleading and proof of

fraud. Fraud is an action, which needs to be pleaded and

proved with certainty. If such pleading and proof are there, the

Court is definitely entitled to recall any order that has been

obtained by fraud. Till such pleading and evidence is on record,

a finding of fraud cannot be returned or pronounced.

As per the judgment reported in Savithramma v. H.

Gurappa Reddy4, pleading and proof of fraud should be on par

3 (2009) 2 SCC 703

AIR 1996 Karnataka 99

with that of a criminal trial. In addition, this Court while

exercising power under Article 226 of the Constitution of India

does not decide disputed questions of fact. The issues raised by

the State are seriously disputed issues. In a review, the power

of this Court is even more limited. For the 'recall' of a review,

this Court has to be more circumspect and careful particularly,

when the review is raising questions of fact and is filed years

after the order was passed. As rightly pointed out, an order

passed on 14.10.2016 is challenged in 2021. The reason for this

delay is not correctly explained.

This Court notices that in 2016 itself, the notices were

issued to the writ petitioners that the lands are purely

Government lands and are not assigned to them. In the

endorsement dated 14.10.2016, it is clearly mentioned that the

writ petitioners were not assigned the land and their names were

not entered in the connected records. It is also mentioned in the

report dated 23.07.2016 that certain records have not emanated

from the Office of the Tahsildar. What action was taken on

these issues is not explained.

A reading of para 8 of the affidavit shows that Officers of

the State themselves are not sure about the documents. The

document dated 23.07.2016 'might' be a fabricated document is

what is stated in the affidavit filed before this Court. To the

same effect is the statement about the document dated

01.07.2007 referred to in para 11(d). Apart from that, the stand

in para 11 (c) consistently is that the notes of inspection Ex.P.4

did not emanate from the Office of the Mandal Revenue officer.

It is also stated that Ex.P.4 does not contain the official seal of

the Special Collector's Office and initials appended thereon are

not of the Revenue Divisional Officer. Communication dated

21.06.2017 was communicated to the Special Inspector of Police

stating that the writ petitioners forged the signature and seal

etc. What happened after this communication is not clearly

explained in the affidavit. Whether the charge sheet was filed

and any finding about the forgery was established etc., are not

mentioned in the affidavit. Similarly, in para 11(f), it is

mentioned that some of the letters stated as references in the

letter are not received in the Office and are not approved by the

Sub-Collector. A reading of the other paras of the affidavit also

shows that similar averments are made. Even if the contents of

the affidavit are taken at face value, these appear to be

conclusions reached by the Officers of the State only. They are

not the result of any enquiry conducted in the presence of the

respondents or the result of a probe or by an independent

agency.

As rightly pointed out by the learned senior counsel, in

addition to these documents, classified as a fraud by the State,

there are other documents which are referred to in the orders

passed at various points of time.

It is also pertinent to note that there is no specific

allegation of fraud against each of the respondents, per se. Who

played the fraud and how they played the fraud should be

clearly established before this Court can be called upon to

decide the issue.

Therefore, on a review of the affidavit, its contents and

after considering the submissions of the learned senior counsel

for the writ petitioners, this Court is of the opinion that at this

stage and with the available affidavit and documents, this Court

cannot come to a conclusion that fraud was played by the

respondents.

This interlocutory application before this Court is not the

proper manner for coming to this conclusion. These are also not

matters which can be decided by this Court while exercising its

power under Article 226 of the Constitution of India. This

becomes even more difficult in a recall of a review order.

The application is therefore dismissed. It is made clear

that the opinions expressed in this order will not preclude the

State from establishing their case of fraud in an appropriate

forum. A very restrictive jurisdiction is exercised by this Court

in review. Review is an extra ordinary remedy and in the words

of Justice Krishna Iyer, it is like 'asking for the moon' unless the

first order is manifestly distorted (Northern India Caterers

Ltd., v. State (1980 (2) SCC 167). The power of review or recall

of a review order is an even greater extra-ordinary remedy. No

case is made out to grant this super extra ordinary remedy as a

prayed for.

For all the above reasons, this interlocutory application is

dismissed.

________________________ D.V.S.S.SOMAYAJULU,J

Date : 25.07.2022 KLP