1 Court No. - 9 Case :- MISC. BENCH No. - 1162 of 2020 Petitioner :- Dhan Prakash Budhraja Respondent :- Commissioner Income Tax Investigation Lko. & Others Counsel for Petitioner :- Rajendra Kumar Dwivedi Counsel for Respondent :- Manish Misra Hon'ble Anil Kumar,J. Hon'ble Virendra Kumar Srivastava,J. Heard Shri R.K. Dwivedi, learned counsel for petitioner and Shri Manish Misra, learned counsel for respondent. instant writ petition has been filed by petitioner with following main prayer:- "(a) Issue appropriate writ, order or direction in nature of Mandamus thereby directing opposite party no. 1 to forthwith take action on complaint of petitioner dated 07.09.2019 sent through speed post (annexed as Annexure No. 1 to writ petition) and proceed in accordance with law." Shri Manish Misra, learned counsel for respondent, raised preliminary objection that present writ petition is liable to be dismissed as on same cause of action, petitioner has already filed eight writ petitions before this Court. But said facts have not been disclosed by petitioner while filing this present petition. said writ petitions are as under:- Type Date of No. Petitioner Respondent filing Year U.P.POLLUTION Misc. DHAN CONTROL BOARD Bench- PRAKASH 1. LUCKNOW THROUGH 13.01.2020 1008- BUDHRAJA MEMBER SECY. & 2020 ORS. 2. Misc. DHAN CHIEF FIRE SAFETY 13.01.2020 2 Bench- OFFICER PANCHAM PRAKASH 1053- TAL INDIRA BAHWAN BUDHRAJA 2020 LKO. & ORS. Misc. COMMISSIONER DHAN Bench- INCOME TAX 3. PRAKASH 14.01.2020 1162- INVESTIGATION LKO. BUDHRAJA 2020 & OTHERS Misc. LUCKNOW NAGAR DHAN Bench- NIGAM LUCKNOW 4. PRAKASH 14.01.2020 1230- OFFICE LALBAGH BUDHRAJA 2020 LKO. & ORS. Misc. U.P. POWER DHAN Bench- CORPORATION LTD. 5. PRAKASH 16.01.2020 1281- THROUGH MANAGING BUDHRAJA 2020 DIRECTOR & ORS. Misc. DIRECTOR, DHAN Bench- ENFORCEMENT 6. PRAKASH 16.01.2020 1310- DIRECTORATE, NEW BUDHRAJA 2020 DELHI & OTHERS Misc. UNION OF INDIA DHAN Bench- THRU. MIN. OF 7. PRAKASH 19.07.2019 19931- INTERNAL AFFAIRS & BUDHRAJA 2019 ORS. Misc. STATE OF U.P. THRU. DHAN Bench- PRIN. SECY. CHIEF 8. PRAKASH 05.12.2019 33911- SECY. GOVT. OF U.P. BUDHRAJA 2019 LKO. & ORS. Further, Shri Manish Misra has produced relevant orders passed in some of aforesaid writ petitions, which were filed by petitioner earlier on same cause of action. same are quoted as under:- (a) On 18.01.2020, this Court has passed order in writ petition no. 1281 (M/B) of 2020, which reads as under:- 3 "Notice on behalf of opposite parties no. 1 and 2 has been accepted by Ms. Aprajita Bansal, Advocate. For order proposed to be passed, there is no need to issue notice to opposite parties no. 3 to 6. Learned counsel for petitioner, Mr. Rajendra Kumar Dwivedi, at very outset, made statement at Bar that inadvertently by mistake he has not mentioned all relevant material facts in this writ petition, particularly with respect to earlier writ petitions filed by petitioner on similar facts and circumstances. He may be permitted to withdraw this writ petition with liberty to pursue pending writ petition. It is also stated that for present cause of action he will not file any fresh petition. In view of above, writ petition is dismissed as withdrawn with aforesaid liberty." (Emphasis supplied) (b) On 18.01.2020, this Court has passed order in writ petition no. 1310 (M/B) of 2020, which reads as under:- "Notice on behalf of opposite party no. 1 has been accepted by Office of Assistant Solicitor General of India. For order proposed to be passed, there is no need to issue notice to opposite parties no. 2 to 5. Mr. Shiv P. Shukla, learned Central Government Counsel is present on behalf of opposite party no. 1. Learned counsel for petitioner, Mr. Rajendra Kumar Dwivedi, at very outset, made statement at Bar that inadvertently by mistake he has not mentioned all relevant material facts in this writ petition, particularly with respect to earlier writ 4 petitions filed by petitioner on similar facts and circumstances. He may be permitted to withdraw this writ petition with liberty to pursue pending writ petition. It is also stated that for present cause of action he will not file any fresh petition. In view of above, writ petition is dismissed as withdrawn with aforesaid liberty." (Emphasis supplied) (c) On 27.01.2020, this Court has passed order in writ petition no. 1008 (M/B) of 2020 which reads as under:- "Learned counsel for petitioner prays for withdrawal of writ petition. As prayed, writ petition is dismissed as withdrawn." (Emphasis supplied) (d) On 27.01.2020, this Court has passed order in writ petition no. 1053 (M/B) of 2020 which reads as under:- "Learned counsel for petitioner prays for withdrawal of writ petition. As prayed, writ petition is dismissed as withdrawn." (Emphasis supplied) (e) On 17.01.2020, this Court has passed and order in writ petition no. 1230 (M/B) of 2020 which reads as under :- "List of fresh cases is being revised. No one is present on behalf of petitioner. Mr. Shailendra Singh Chauhan, Advocate is present for opposite party no. 1. Notice of opposite 5 party nos. 2 has been accepted by Mr. Namit Sharma, Advocate. This writ petition has been filed seeking direction to opposite party nos. 1 & 2 to forthwith take action on complaint of petitioner dated 16.09.2019 sent through speed post. Mr. Shailendra Singh Chauhan as well as Mr. Namit Sharma, learned counsel for opposite party nos. 1 and 2 respectively submit that it is totally frivolous petition. Notice of writ petition was given on 19.09.2019 and 20.09.2019 to learned counsel for opposite party nos. 1 & 2 and now after about four months writ petition has been filed without giving any fresh notice. It is also submitted that necessary parties such as Lucknow Development Authority and U.P. Avas Evam Vikas Parishad have not been impleaded in writ petition. opposite party nos. 1 & 2 have no concern with grievance of petitioner as set out in instant writ petition. It is also submitted that petitioner after giving notice of instant writ petition has filed another writ petition bearing No. 33911 (M/B) of 2019 which is pending in this Court. petitioner has not disclosed earlier writ petition filed by him. It is submitted that in given circumstances, writ petition is not maintainable. It is to be noted that in first round when case was taken up we had passed over case and directed petitioner counsel to be present when case is taken in revise list and it will not be adjourned, however, no one is present on behalf of petitioner to press this writ petition 6 We have considered submissions made by learned counsel for opposite parties no. 1 & 2 and gone through record. We are satisfied that grievance of petitioner appears to be against Lucknow Development Authority as well as Uttar Pradesh Awas Evam Vikas Parishad who have not been impleaded in writ petition. Moreover, petitioner has not disclosed his credentials as well as cause of action accrued to him to maintain writ petition. In view of above, writ petition, in given circumstances, is not maintainable. It is accordingly dismissed." (Emphasis supplied) Shri Manish Mishra, learned counsel for respondent, has also raised objection that prayer made by petitioner in present writ petition cannot be granted as there is no statutory legal right vested on part of petitioner to make representation for direction to opposite party no. 1 i.e Commissioner Income Tax Investigation, Lucknow to take action on complaint of petitioner dated 07.09.2019, sent through speed post, as contained in Annexure No. 1 to writ petition. Accordingly, it is submitted by Shri Manish Mishra, learned counsel for respondent No. 1, that present writ petition is liable to be dismissed. In view of said facts on 03.02.2020, this Court has passed 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. 7 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 present case, petitioner, for same cause of action, although against different authorities, has filed writ petition with prayer of mandamus that necessary investigation may be done against private respondents. He has produced details of matter, same is taken on record. Shri Dhan Prakash Budhraja is present before this Court. As prayed by Shri Dhan Prakash Budhraja as well as Shri Dinesh Kumar Singh, Advocate, we hereby adjourn matter for today. Put up tomorrow i.e. on 04.02.2020. On said date Shri Rajendra Kumar Dwivedi, Advocate shall remain present before this Court. Shri Dinesh Kumar Singh is directed to inform Shri Rajendra Kumar Dwivedi about this order." Today (04.02.2020) Shri Dinesh Kumar Singh, learned counsel appearing on behalf of petitioner, Shri Rajendra Kumar Dwivedi, learned counsel, who has filed this writ petition as well as Shri Dhan Prakash Budharaja (in person) are present. Shri Rajendra Kumar Diwedi, learned Advocate submits that brief of all matters has been handed over to him by petitioner Shri Dhan Prakash Budhraja and with his consultation writ petitions have been drafted. He further submits that as per discussion with Shri Dhan Prakash Budhraja, petitions were to be filed at appropriate time and in view of said facts, after getting instructions from Shri. Dhan Prakash Budhraja, present writ petition and other writ petitions were filed before this Court. Shri Dhan Prakash Budhraja who appears in person did not dispute fact that he has handed over material to Shri Rajendra Kumar Diwedi, learned Advocate to prepare writ petition and other writ 8 petitions, however, he stated that as per consultation and advice given by him writ petitions were to be filed as and when time requires but without his knowledge and consent, writ petitions have been filed by Shri Rajendra Kumar Diwedi, learned Advocate. Shri Rajendra Kumar Diwedi, learned Advocate submits that statement made by Shri Dhan Prakash Budhraja is not correct and as per consultation with him writ petitions were filed. In view of above said facts, prayer has been made only in respect to disposal by authority concerned who are impleaded as respondents in various writ petitions. After hearing both counsel and in view of above facts, position which emerges is that in present petition it is not in dispute that material/brief was handed over by Shri Dhan Prakash Budhraja to Shri Rajendra Kumar Diwedi, learned Advocate to file writ petitions including present writ petition before this Court and thereafter writ petitions were prepared which was duly signed and affidavit was also sworned (in month of September, 2019). Moreover, admitted facts are also so emerged out that on behalf of , eight petitions have been filed including present writ petition. In six of writ petitions 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 map sanctioned by Lucknow Development Authority (W.P. No.33911 (M/B) of 2019). Further from material on record, position which emerges is that Shri Dhan Prakash Budhraja, who has sworned affidavit in present petition, has neither stated in writ petition in respect of filing of earlier petitions nor brought to notice of this Court. He said that when present petition was taken up for argument or when arguments were advanced by Shri Dinesh Kumar Singh, Advocate for petitioner, said facts were brought to notice of this Court by Shri Manish Misra, learned counsel for opposite party. So, same act is 9 nothing but amount to suppression of material facts on part of petitioner. Keeping in view said facts as well as law laid down by Hon'ble Apex Court in case of Prestige Lights Ltd. v. State Bank of India : (2007) 8 SCC 449, wherein ti has been held that in exercising power under Article 226 of Constitution of India, High Court is not just court of law, but is also court of equity and person who invokes High Court's jurisdiction under Article 226 of Constitution, is duty bound to place all facts before court without any reservation. If there is suppression of material facts or twisted facts have been placed before High Court then it will be fully justified in refusing to entertain petition filed under Article 226 of Constitution. Apex Court Court while referring to judgment of Scrutton, LJ. in R v. Kensington Income Tax Commissioners, observed as under:- "In exercising jurisdiction under Article 226 of Constitution, High Court will always keep in mind conduct of party who is invoking such jurisdiction. If applicant does not disclose full facts or suppresses relevant materials or is otherwise-guilty of misleading Court, then Court may dismiss action without adjudicating matter on merits. rule has been evolved in larger public interest to deter unscrupulous litigants from abusing process of Court by deceiving it. very basis of writ jurisdiction rests in disclosure of true, complete and correct facts. If material facts are not candidly stated or are suppressed or are distorted, very functioning of writ courts would become impossible." In Welcome Hotel and Ors. v. State of Andhra Pradesh and Ors. etc. AIR 1983 SC 1015, Apex Court has held that party which has 10 misled Court in passing order in its favour is not entitled to be heard on merits of case. In K.D. Sharma v. Steel Authority of India Ltd. and Ors.,[2008 (12) SCC 481] Apex Court has held that jurisdiction of Supreme Court under Article 32 and of High Court under Article 226 of Constitution is extraordinary, equitable and discretionary and it is imperative that petitioner approaching Writ Court must come with clean hands and put forward all facts before Court without concealing or suppressing anything and seek appropriate relief. If there is no candid disclosure of relevant and material facts or petitioner is guilty of misleading Court, his petition may be dismissed at threshold without considering merits of claim. 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], Apex Court seriously criticized making of false statement on oath and attempt of litigant in misleading Court. It is settled law that one should approach court with clean heart and clean mind to get relief and one who does not come with clean heart and clean mind, dis-entitles himself from getting any relief from Court. From what has been mentioned above, it is clear that petitioner has filed this writ petition with oblique motives and has not presented correct facts just to gain undue advantage. Such type of practice should always be discouraged and is highly deprecated. They belong to category of persons who not only attempt, but succeed in polluting course of justice. In Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education and others, 2003 (Suppl.) 3 SCR 352 , it was reiterated after referring to various earlier decisions of Apex Court that 11 fraud, misrepresentation and concealment of material fact vitiates all solemn acts. In State of Andhra Pradesh & another Vs. T. Suryachandra Rao, AIR 2005 SC 3110, Apex Court after referring to various earlier decisions held that suppression of material document would also amount to fraud on Court. same view has been reiterated in Bhaurao Dagdu Paralkar Vs. State of Maharashtra & others, AIR 2005 SC 3330. In R. Vishwanatha Pillai Vs. State of Kerala & others, JT 2004(1) SC 88 Apex Court observed that person, who seeks equity, must act in fair and equitable manner. In Rajabhai Abdul Rehman Munshi Vs. Vasudev Dhanjibhai Mody, AIR 1964 SC 345, it was held that "if there appears on part of person, who has approached Court, any attempt to overreach or mislead Court by false or untrue statements or by withholding true information which would have bearing on question of exercise of discretion, Court would be justified in refusing to exercise discretion or if discretion has been exercised in revoking leave to appeal granted even at time of hearing of appeal". same view was reiterated and followed in Vijay Syal & another Vs. State of Punjab & others (2003) 9 SCC 401. Further, action on part of petitioner thereby concealing facts in respect of earlier filing of writ petitions on same cause of action while filing present writ petition also amounts to making misrepresentation or playing fraud upon Court. So, in view of above said facts, Hon'ble Apex Court in Andhra Pradesh State Financial Corporation Vs. M/S GAR Re-Rolling Mills & Anr,., AIR 1994 SC 2151; and State of Maharashtra & Ors. Vs. Prabhu, (1994) 2 SCC 481, has observed that writ court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of legal fraud as Courts are obliged to do justice by promotion of good faith. Equity is, 12 also, known to prevent law from crafty evasionss and subletties invented to evade law. Hon'ble Apex Court in Smt. Shrisht Dhawan Vs. Shaw Brothers, AIR 1992 SC 1555, has held as under:- "Fraud and collusion vitiate even most solemn proceedings in any civilised system of jurisprudence. It is concept descriptive of human conduct." In United India Insurance Co.Ltd. Vs. Rajendra Singh & Ors., (2000) 3 SCC 581, Apex Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is pristine maxim which has never lost its temper over all these centuries. ratio laid down by Supreme Court in various cases is that dishonesty should not be permitted to bear fruit and benefit to persons who played fraud or made misrepresentation and in such circumstances Court should not perpetuate fraud by entertaining petitioners on their behalf. In Union of India & Ors. Vs. M.Bhaskaran, 1995 Suppl. (4) SCC 100, 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, same cannot be permitted to be countenanced by Court of Law as employment secured by fraud renders it voidable at option of employer." Similar view has been reiterated by Apex Court in case of S. Pratap Signh Vs. State of Punjab, AIR 1964 SC 72;. Ram Chandra Singh Vs. Savitri Devi & Ors., (2003) 8 SCC 319; and Vice Chairman, Kendriya Vidyalaya Sangathan & Anr. Vs. Girdharilal Yadav, (2004) 6 SCC 325. 13 Thus "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is conduct either by letter or words, which includes other person or authority to take definite determinative stand as response to conduct of former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud." Thus, keeping in view above said facts, present writ petition is liable to be dismissed on ground of concealment of facts in respect of filing of earlier writ petitions. In addition to above said facts, prayer as made by petitioner in present writ petition for issue of writ of mandamus to opposite party no. 1 i.e Commissioner Income Tax (Investigation), Lucknow, cannot be granted because for issue of writ of mandamus first essential requirement is that authority against whom writ of mandamus is sought, has got legal duty, to issue writ of mandamus and further person/petitioner who has sought for writ of mandamus should have approached authority concerned after making request, petitioner/person who made request should have approached said authority to pay heed in regard to request which was made by him and if said authority is to act upon only cause of action on part of person who approached for issue of writ of mandamus under Article 226 of Constitution of India. "Mandamus" is Latin word. Literally, it means "command" or "order" which directs person or authority to whom it is addressed to perform public duty imposed on him or on it. Mandamus is English origin. direction in Magna Carta that Crown was bound neither to deny justice to anybody nor to delay anybody in obtaining justice has been recognized by this writ. first reported case of mandamus was Middleton's Case (1574) 3 Dyer 332b in 1573 wherein citizen's franchise was restored. James Bagg 14 (1615) 11 Co Rep 93b was leading decision by which membership of local body was restored to applicant. first reported case was in 1775 R. v. Warren Hastings, (1775) 1 ID (05) 1005, where mandamus was sought against supreme Council of Governor General. Statutory recognition to grant mandamus was granted by section 50 of Specific Relief Act, 1877. In Tan Bug Taim V. Collector AIR 1946 Bom 216, order requisitioning property was held ultra vires. words "any law" were interpreted as wide enough to include all kind of law, statutory or otherwise. After commencement of Constitution, Supreme Court is empowered under Article 32 to issue mandamus for enforcement of fundamental rights, while every High Court has power to issue mandamus under Article 226 for enforcement of fundamental rights and also for "any other purpose" throughout territories in relation to which it exercises jurisdiction. Mandamus differs from prohibition and certiorari in that, while former can be issued against administrative authority, latter are available against judicial and quasi-judicial authorities. Certiorari acts where courts and tribunal usurp jurisdiction vested in them or exceed their jurisdiction. Whereas mandamus demands activity, prohibition commands inactivity. While mandamus compels, certiorari corrects. writ of mandamus is extraordinary remedy. It is not writ of right. It is intended to supply deficiency in law and is thus discretionary remedy. court may refuse to issue mandamus unless it is shown that there is clear right of applicant or statutory or common-law duty of respondent and there is no alternative remedy available to applicant. Like any other discretion, however, discretion to issue mandamus also must be exercised fairly reasonably and on well-established legal principles. In Corpus Juris Secundum Vol 55, 5 (See Halsbury's Laws of England, Vol. 1 (4th Edn.) paras 89 III), mandamus is defined thus: 15 "Mandamus is writ directed to person, officer, corporation or inferior court commanding performance of particular duty which results from official station of one to whom it is directed or from operation of law." Thus it is order issued by court to public authority asking it to perform public duty imposed upon it by constitution or by any other law (See State of Mysore v. K. N. Chandrasekhara, AIR 1965 SC 532) and it is judicial remedy which is in form of order from superior court (the Supreme Court or High Court) to any government, court, corporation or public authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as case may be, and which is in nature of public duty and in certain cases of statutory duty. While mandamus may require performance of duty, it is command is never to act in particular manner. Mandamus cannot be used to substitute judgment or direction of court for that of authority against whom it is issued. primary object of mandamus is to supply defect of justice. It seeks to protect rights of citizen by requiring enforcement and fulfilment of imperative duty created by law. It thus promotes justice. It should therefore, be used at all occasions where law has conferred right but has created no specific remedy. Through this writ , court can correct all errors which trend to oppression of subject and grant him appropriate relief. main function of Mandamus is to compel action. It neither creates nor confers power to act. It only commands exercise of power already existing when it is duty of 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. court will consider whether issuance of mandamus 16 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). writ of mandamus can be issued if following conditions are satisfied by petitioner: petitioner must have legal right. This is condition precedent. It is elementary that no one can ask for mandamus without legal right. There must be legally protected and judicially enforceable right before applicant may claim mandamus. person can be said to be aggrieved to do something or to abstain from doing something. existence of right is thus foundation of jurisdiction of writ court to issue mandamus. (See Umakant Saran v. State of Bihar, (1973) 1 SCC 485). Hon'ble Apex Court in Praga Tools corpn. V. Imanual (1969) 1 SCC 585 (Praga Tools Corpn.) held that "the condition precedent for issue of mandamus is that there is in it one claiming legal right to performance of legal duty by one against whom it is sought". In Mani Subrat Jain V. State of Haryana (1977) 1 SCC 486, Apex Court held that "it is elementary though it is be restated that no one can ask for mandamus without legal right. There must be judicially enforceable right as well as legally protected interest before one suffering legal grievance can ask for mandamus. person can be said to be aggrieved only when person is denied legal right by someone who has legal duty to do something or to abstain from doing something". Applicant approaching 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 petition of mandamus. (See Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41). second requirement for writ of mandamus is that opposite party must have legal duty to be performed. legal duty must have been imposed on authority by constitution, statute or by common law 17 and performance of that duty should be imperative, not discretionary or optional. There must be in applicant right to compel performance of some duty cast on opponent. (See State of MP. v. G. C. Mandawar, AIR 1954 SC 493)." For foregoing reasons, we hereby dismiss writ petition with cost of Rs. 50,000/- which should be deposited by petitioner Shri Dhan Prakash Budhraja within period of four weeks from today before Senior Registrar of this Court and amount so deposited shall be sent to Legal Service Authority of State of U.P. If petitioner Shri Dhan Prakash Budhraja fails to deposit aforesaid amount within specified period Senior Registrar of this Court shall take appropriate action against him as per law. (Virendra Kumar Srivastava,J.)(Anil Kumar,J.) Order Date :- 4.2.2020 P.S Dhan Prakash Budhraja v. Commissioner Income-tax, Investigation Lko. & Other