2020 (2) TMI 842 - HC - Income Tax

Action on the complaint of the petitioner sent through speed post - Request for necessary investigation may be done against private respondents - Writ of Mandamus - HELD THAT - Shri Dhan Prakash Budhraja, who has sworned the affidavit in the present petition, has neither stated in the writ petition in respect of filing of earlier petitions nor brought to the notice of this Court. He said that when the present petition was taken up for argument or when the arguments were advanced by Shri Dinesh Kumar Singh, Advocate for the petitioner, the said facts were brought to notice of this Court by Shri Manish Misra, learned counsel for the opposite party. So, the same act is nothing but amount to suppression of material facts on the part of the petitioner. It is settled law that one should approach the court with clean heart and clean mind to get a relief and one who does not come with clean heart and clean mind, dis-entitles himself from getting any relief from the Court. From what has been mentioned above, it is clear that the petitioner has filed this writ petition with oblique motives and has not presented the correct facts just to gain undue advantage. Such type of practice should always be discouraged and is highly deprecated. They belong to the category of persons who not only attempt, but succeed in polluting the course of justice. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Thus, keeping in view the above said facts, the present writ petition is liable to be dismissed on the ground of concealment of facts in respect of the filing of the earlier writ petitions. In addition to the above said facts, the prayer as made by the petitioner in the present writ petition for issue of writ of mandamus to the opposite party no. 1 i.e The Commissioner Income Tax (Investigation), Lucknow, cannot be granted because for issue of writ of mandamus the first essential requirement is that the authority against whom writ of mandamus is sought, has got the legal duty, to issue writ of mandamus and further the person/petitioner who has sought for writ of mandamus should have approached the authority concerned after making request, the petitioner/person who made request should have approached the said authority to pay heed in regard to the request which was made by him and if the said authority is to act upon only the cause of action on the part of person who approached for issue of writ of mandamus under Article 226 of Constitution of India. Mandamus is a Latin word. Literally, it means a command or an order which directs a person or authority to whom it is addressed to perform the public duty imposed on him or on it. A writ of mandamus is an extraordinary remedy. It is not a writ of right. It is intended to supply deficiency in law and is thus a discretionary remedy. A court may refuse to issue mandamus unless it is shown that there is clear right of the applicant or statutory or common-law duty of the respondent and there is no alternative remedy available to the applicant. Like any other discretion, however, discretion to issue mandamus also must be exercised fairly reasonably and on well-established legal principles. Applicant approaching a writ court must show that he himself has legal right which can be enforced. If he is not directly or substantially affected, he cannot maintain a petition of mandamus. (See Charanjit Lal Chowdhury v. Union of India, 1950 (12) TMI 17 - SUPREME COURT The second requirement for a writ of mandamus is that the opposite party must have a legal duty to be performed. A legal duty must have been imposed on the authority by the constitution, a statute or by common law and the performance of that duty should be imperative, not discretionary or optional. There must be in the applicant a right to compel the performance of some duty cast on the opponent. (See State of MP. v. G. C. Mandawar 1954 (5) TMI 28 - SUPREME COURT For the foregoing reasons, we hereby dismiss the writ petition with a cost of ₹ 50,000/- which should be deposited by the petitioner Shri Dhan Prakash Budhraja within a period of four weeks from today before the Senior Registrar of this Court and the amount so deposited shall be sent to the Legal Service Authority of the State of U.P.

Issues Involved:
1. Preliminary Objection Regarding Multiple Petitions
2. Alleged Concealment of Material Facts
3. Legal Right to Mandamus

Detailed Analysis:

1. Preliminary Objection Regarding Multiple Petitions:
The respondent's counsel, Shri Manish Misra, raised a preliminary objection that the petitioner had filed multiple writ petitions on the same cause of action without disclosing this fact in the current petition. The court reviewed the details of eight previously filed writ petitions by the petitioner, including the dates and parties involved. The respondent produced relevant orders from the earlier writ petitions, highlighting that the petitioner had sought to withdraw some petitions with liberty to pursue pending ones, and in others, the petitions were dismissed as frivolous or non-maintainable. The court noted that the petitioner had suppressed the fact of filing these previous petitions, which amounted to misleading the court.

2. Alleged Concealment of Material Facts:
The court emphasized that the petitioner had not disclosed the filing of earlier writ petitions on the same cause of action, which was brought to light by the respondent's counsel. The court referenced various judgments, including *Prestige Lights Ltd. v. State Bank of India* and *Dalip Singh v. State of Uttar Pradesh*, to underline that suppression of material facts or misleading the court disqualifies a petitioner from seeking relief under Article 226 of the Constitution. The court reiterated that a person invoking the High Court's jurisdiction must disclose all relevant facts candidly. The court found that the petitioner's actions amounted to suppression of material facts and misrepresentation, which vitiates the proceedings.

3. Legal Right to Mandamus:
The petitioner sought a writ of mandamus directing the Commissioner of Income Tax (Investigation), Lucknow, to take action on a complaint dated 07.09.2019. The court explained that for a writ of mandamus to be issued, there must be a clear legal right on the part of the petitioner and a corresponding legal duty on the part of the respondent. The court cited various legal principles and precedents, including definitions and conditions for issuing mandamus, as outlined in *Umakant Saran v. State of Bihar* and *Mani Subrat Jain v. State of Haryana*. The court concluded that the petitioner did not demonstrate a legally enforceable right or a duty on the part of the respondent that warranted the issuance of a writ of mandamus.

Conclusion:
The court dismissed the writ petition on the grounds of suppression of material facts and lack of a legal right to mandamus. The petitioner was ordered to pay a cost of ?50,000 within four weeks, failing which appropriate action would be taken by the Senior Registrar of the court. The amount was to be deposited with the Legal Service Authority of the State of U.P.

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