9911796707
TMI Blog2020 (2) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... lief 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 issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of U.P. - Anil Kumar And Virendra Kumar Srivastava JJ. For the Petitioner : Rajendra Kumar Dwivedi For the Respondent : Manish Misra ORDER Heard Shri R.K. Dwivedi, learned counsel for the petitioner and Shri Manish Misra, learned counsel for the respondent. The instant writ petition has been filed by the petitioner with the following main prayer:- (a) Issue an appropriate writ, order or direction in the nature of Mandamus thereby directing the opposite party no. 1 to forthwith take action on the complaint of the petitioner dated 07.09.2019 sent through speed post (annexed as Annexure No. 1 to the writ petition) and proceed in accordance with law. Shri Manish Misra, learned counsel for the respondent, raised a preliminary objection that the present writ petition is liable to be dismissed as on the same cause of action, the petitioner has already filed eight writ petitions before this Court. But the said facts have not been disclosed by the petitioner while filing this present petition. The said writ petitions are as under:- Type No. Year Petitioner Respondent Date of filing 1. Misc. Bench-1008-2020 DHAN PRAKASH BUDHRAJA U.P.POLLUTION CONTROL BOARD LUCKNOW THROUGH MEMBER SECY. ORS. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party no. 1. Learned counsel for petitioner, Mr. Rajendra Kumar Dwivedi, at the very outset, made a statement at the Bar that inadvertently by mistake he has not mentioned all the relevant material facts in this writ petition, particularly with respect to the earlier writ petitions filed by the petitioner on the similar facts and circumstances. He may be permitted to withdraw this writ petition with liberty to pursue the pending writ petition. It is also stated that for the present cause of action he will not file any fresh petition. In view of above, the writ petition is dismissed as withdrawn with aforesaid liberty. (Emphasis supplied) (c) On 27.01.2020, this Court has passed an order in writ petition no. 1008 (M/B) of 2020 which reads as under :- Learned counsel for the petitioner prays for withdrawal of the writ petition. As prayed, writ petition is dismissed as withdrawn. (Emphasis supplied) (d) On 27.01.2020, this Court has passed an order in writ petition no. 1053 (M/B) of 2020 which reads as under :- Learned counsel for the petitioner prays for withdrawal of the writ petition. As prayed, writ petition is dismissed as withdrawn. (Emphasis supplied) (e) On 17.01.2020, this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mphasis supplied) Shri Manish Mishra, learned counsel for the respondent, has also raised an objection that the prayer made by the petitioner in the present writ petition cannot be granted as there is no statutory legal right vested on the part of the petitioner to make the representation for direction to the opposite party no. 1 i.e Commissioner Income Tax Investigation, Lucknow to take action on the complaint of the petitioner dated 07.09.2019, sent through speed post, as contained in Annexure No. 1 to the writ petition. Accordingly, it is submitted by Shri Manish Mishra, learned counsel for respondent No. 1, that the present writ petition is liable to be dismissed. In view of the said facts on 03.02.2020, this Court has passed an order, which reads as under:- Heard learned counsel for petitioner and learned State Counsel as well as Shri Manish Mishra, learned counsel appearing on behalf of respondent no. 1. The present petition has been filed by Shri Rajendra Kumar Dwivedi, Advocate. Subsequently, Shri Dinesh Kumar Singh, Advocate has filed vakalatnama on behalf of petitioner. Learned counsel for petitioner submits that in the present case, the petitioner, for same cause of acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s handed over by Shri Dhan Prakash Budhraja to Shri Rajendra Kumar Diwedi, learned Advocate to file writ petitions including the present writ petition before this Court and thereafter writ petitions were prepared which was duly signed and affidavit was also sworned (in the month of September, 2019). Moreover, the admitted facts are also so emerged out that on behalf of the , eight petitions have been filed including the present writ petition. In six of the writ petitions the reliefs claimed are identical one, as admitted by Shri Dhan Prakash Budhraja and two writ petitions, one is for transfer of investigation (W.P. No.19931(M/B) of 2009) and other one is for relief to quash the map sanctioned by Lucknow Development Authority (W.P. No.33911 (M/B) of 2019). Further from the material on record, the position which emerges is 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 petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayshree and Ors. v. Bhagwandas S. Patel and Ors.: (2009) 3 SCC 141 . In Dalip Singh Versus State of Uttar Pradesh and others [(2010) 2 Supreme Court Cases 114], the Apex Court seriously criticized the making of false statement on oath and the attempt of a litigant in misleading the Court. 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 cate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, AIR 1992 SC 1555 , has held as under:- Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. In United India Insurance Co.Ltd. Vs. Rajendra Singh Ors., (2000) 3 SCC 581 , the Apex Court observed that Fraud and justice never dwell together (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries. The ratio laid down by the Supreme Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud by entertaining the petitioners on their behalf. In Union of India Ors. Vs. M.Bhaskaran, 1995 Suppl. (4) SCC 100 , the Apex Court, after placing reliance upon and approving its earlier judgment in District Collector Chairman, Vizianagaram Social Welfare Residential School Society. Vizianagaram Anr. Vs. M. Tripura Sundari Devi, (1990) 3 SCC 655 , observed as under:- If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was restored to the applicant. The first reported case was in 1775 R. v. Warren Hastings, (1775) 1 ID (05) 1005 , where mandamus was sought against the supreme Council of the Governor General. Statutory recognition to grant mandamus was granted by section 50 of the Specific Relief Act, 1877. In Tan Bug Taim V. Collector AIR 1946 Bom 216 , an order requisitioning property was held ultra vires. The words any law were interpreted as wide enough to include all kind of law, statutory or otherwise. After the commencement of the Constitution, the Supreme Court is empowered under Article 32 to issue mandamus for the enforcement of fundamental rights, while every High Court has power to issue mandamus under Article 226 for the enforcement of fundamental rights and also for any other purpose throughout the territories in relation to which it exercises jurisdiction. Mandamus differs from prohibition and certiorari in that, while the former can be issued against administrative authority, the latter are available against judicial and quasi-judicial authorities. Certiorari acts where the courts and tribunal usurp jurisdiction vested in them or exceed their jurisdiction. Whereas mandamus demands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existing when it is the duty of the person or authority proceeded against to act. Remedy in mandamus is equitable in nature and its issuance is largely controlled by equitable considerations. It can only be issued to prevent injustice. A court will consider whether issuance of mandamus would promote substantial justice or perpetuate injustice. writ of mandamus will not be granted where harm than good will result from its issuance. (See Wade Forsyth, Administration Law (2009) 524 ). A writ of mandamus can be issued if the following conditions are satisfied by the petitioner: The petitioner must have a legal right. This is a condition precedent. It is elementary that no one can ask for mandamus without a legal right. There must be legally protected and judicially enforceable right before an applicant may claim mandamus. A person can be said to be aggrieved to do something or to abstain from doing something. The existence of right is thus the foundation of the jurisdiction of a writ court to issue mandamus. (See Umakant Saran v. State of Bihar, (1973) 1 SCC 485 ). Hon'ble the Apex Court in Praga Tools corpn. V. Imanual (1969) 1 SCC 585 (Praga Tools Corpn.) held that the condition ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
