Court Dismisses Petition for Concealing Facts, Imposes Rs.50,000 Cost

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Case Name: 

Dhan Prakash Budhraja vs Commissioner of Income Tax Investigation Lko. & Ors. (High Court of Allahabad)

Misc. Bench No. 1162 of 2020

Date: 4th February 2020

Key Takeaways:

1. Suppression of material facts in a writ petition can lead to dismissal.

2. Courts expect petitioners to disclose all relevant information, including previously filed petitions.

3. Misrepresentation or fraud upon the court can result in penalties.

4. Writ of mandamus requires a clear legal right and duty.

Issue: 

Whether the High Court should entertain a writ petition under Article 226 of the Constitution when the petitioner has suppressed material facts about previously filed petitions on the same cause of action?

Facts:

1. Dhan Prakash Budhraja filed a writ petition seeking action on his complaint dated 07.09.2019 against the Commissioner of Income Tax Investigation, Lucknow.

2. It was later revealed that Budhraja had previously filed eight writ petitions on similar grounds without disclosing this information in the current petition.

3. The petitioner had provided materials to his advocate, Rajendra Kumar Dwivedi, to file multiple petitions.

4. Six of the eight petitions had identical reliefs, while two others were for different purposes.

Arguments:

Petitioner's Argument:

- Claimed that the writ petitions were to be filed at appropriate times as per discussions with the advocate.

- Stated that the petitions were filed without his knowledge and consent.

Respondent's Argument:

- Raised objection about the non-disclosure of previously filed petitions.

- Argued that the prayer for mandamus couldn't be granted as there was no statutory legal right vested in the petitioner.

Key Legal Precedents:

1. Prestige Lights Ltd. v. State Bank of India (2007) 8 SCC 449: Held that a person invoking Article 226 jurisdiction must place all facts before the court without reservation.

2. Welcome Hotel and Ors. v. State of Andhra Pradesh and Ors. AIR 1983 SC 1015: A party misleading the court is not entitled to be heard on merits.

3. K.D. Sharma v. Steel Authority of India Ltd. and Ors. [2008 (12) SCC 481]: Petitioner must come with clean hands and disclose all facts.

4. Andhra Pradesh State Financial Corporation Vs. M/S GAR Re-Rolling Mills & Anr. AIR 1994 SC 2151: Writ courts should prevent perpetration of legal fraud.

Judgement:

The High Court dismissed the writ petition on two grounds:

1. Concealment of facts about previously filed petitions.

2. Lack of legal right for issuing a writ of mandamus against the Income Tax department.

The court imposed a cost of Rs.50,000 on the petitioner, to be deposited within four weeks and transferred to the Legal Service Authority of Uttar Pradesh.

FAQs:

1. Q: Why did the court dismiss the petition?

  A: The court dismissed the petition due to the suppression of material facts about previously filed petitions and the lack of legal right for mandamus.

2. Q: What are the requirements for issuing a writ of mandamus?

  A: A writ of mandamus requires the petitioner to have a legal right and the respondent to have a legal duty to perform.

3. Q: Can the court impose costs for suppressing facts?

  A: Yes, the court can impose costs as a penalty for suppressing material facts or misleading the court.

4. Q: What happens if the petitioner doesn't pay the imposed cost?

  A: If the petitioner fails to deposit the amount within the specified period, the Senior Registrar of the Court will take appropriate legal action.

5. Q: How does this judgment impact future writ petitions?

  A: This judgment emphasizes the importance of full disclosure in writ petitions and the consequences of suppressing material facts.

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. 13.01.2020

2. Misc. DHAN CHIEF FIRE SAFETY 13.01.2020 Bench-1053-2020 PRAKASH BUDHRAJA OFFICER PANCHAM TAL INDIRA BAHWAN LKO. & ORS.

3. Misc. Bench-1162-2020 DHAN PRAKASH BUDHRAJA COMMISSIONER INCOME TAX INVESTIGATION LKO. & OTHERS 14.01.2020

4.

Misc. Bench-1230-2020 DHAN PRAKASH BUDHRAJA

LUCKNOW NAGAR NIGAM LUCKNOW OFFICE LALBAGH LKO. & ORS.

14.01.2020

5.Misc. Bench-1281-2020

DHAN PRAKASH BUDHRAJA

U.P. POWER CORPORATION LTD. THROUGH MANAGING DIRECTOR & ORS. 16.01.2020

6.Misc. Bench-1310-2020

DHAN PRAKASH BUDHRAJA DIRECTOR, ENFORCEMENT DIRECTORATE, NEW DELHI & OTHERS 16.01.2020 7.Misc. Bench-19931-2019

DHAN PRAKASH BUDHRAJA

THE UNION OF INDIA THRU. MIN. OF INTERNAL AFFAIRS & ORS.

19.07.2019

8.Misc. Bench-33911-2019

DHAN PRAKASH BUDHRAJA

STATE OF U.P. THRU. PRIN. SECY. CHIEF SECY. GOVT. OF U.P. LKO. & ORS.

05.12.2019

Further, Shri Manish Misra has produced the relevant orders passed in some of the aforesaid writ petitions, which were filed by the petitioner earlier on the same cause of action. The same are quoted as under:-

(a) On 18.01.2020, this Court has passed an order in writ petition no. 1281 (M/B) of 2020, which reads as under:-

"Notice on behalf of opposite parties no. 1 and 2 has been accepted by Ms. Aprajita Bansal, Advocate. For the 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 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)

(b) On 18.01.2020, this Court has passed an 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 the Office of Assistant Solicitor General of India. For the 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 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 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 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 the complaint of the 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 a frivolous petition. Notice of the writ petition was given on 19.09.2019 and 20.09.2019 to the learned counsel for opposite party nos. 1 & 2 and now after about four months the 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 the writ petition. The opposite party nos. 1 & 2 have no concern with the grievance of the petitioner as set out in the instant writ petition. It is also submitted that the petitioner after giving notice of the instant writ petition has filed another writ petition bearing No. 33911 (M/B) of 2019 which is pending in this Court. The petitioner has not disclosed the earlier writ petition filed by him. It is submitted that in the given circumstances, the writ petition is not maintainable.

It is to be noted that in the first round when the case was taken up we had passed over the case and directed the petitioner counsel to be present when the case is taken in the revise list and it will not be adjourned, however, no one is present on behalf of the petitioner to press this writ petition.

We have considered the submissions made by learned counsel for opposite parties no. 1 & 2 and gone through the record.

We are satisfied that the grievance of the petitioner appears to be against Lucknow Development Authority as well as Uttar Pradesh Awas Evam Vikas Parishad who have not been impleaded in the writ petition. Moreover, the petitioner has not disclosed his credentials as well as the cause of action accrued to him to maintain the writ petition. In view of above, the writ petition, in the given circumstances, is not maintainable. It is accordingly dismissed." (Emphasis 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 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 the matter, the 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 the matter for today.

Put up tomorrow i.e. on 04.02.2020. On the 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 the 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 the matters has been handed over to him by the 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, the petitions were to be filed at appropriate time and in view of the said facts, after getting instructions from Shri. Dhan Prakash Budhraja, the present writ petition and other writ petitions were filed before this Court. Shri Dhan Prakash Budhraja who appears in person did not dispute the fact that he has handed over the material to Shri Rajendra Kumar Diwedi, learned Advocate to prepare the writ petition and other writ petitions, however, he stated that as per the consultation and advice given by him the writ petitions were to be filed as and when time requires but without his knowledge and consent, the writ petitions have been filed by Shri Rajendra Kumar Diwedi, learned Advocate.

Shri Rajendra Kumar Diwedi, learned Advocate submits that the statement made by Shri Dhan Prakash Budhraja is not correct and as per consultation with him the writ petitions were filed. In view of the above said facts, the prayer has been made only in respect to the disposal by the authority concerned who are impleaded as respondents in the various writ petitions.

After hearing both the counsel and in view of the above facts, the position which emerges is that in the present petition it is not in dispute that the material/brief was 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 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.

Keeping in view the said facts as well as the law laid down by the Hon'ble Apex Court in the 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 the Constitution of India, the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution, is duty bound to place all the facts before the court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain petition filed under Article 226 of the Constitution. The Apex Court Court while referring to the judgment of Scrutton, LJ. in R v. Kensington Income Tax Commissioners, observed as under:-

"In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise-guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."

In Welcome Hotel and Ors. v. State of Andhra Pradesh and Ors. etc. AIR 1983 SC 1015, the Apex Court has held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case.

In K.D. Sharma v. Steel Authority of India Ltd. and Ors.,[2008 (12) SCC 481] the Apex Court has held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the Writ 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 category of persons who not only attempt, but succeed in polluting the 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 the Apex Court that 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, the Apex Court after referring to various earlier decisions held that suppression of a material document would also amount to a fraud on the Court. The 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 the Apex Court observed that a person, who seeks equity, must act in a 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 the part of a person, who has approached the Court, any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion or if the discretion has been exercised in revoking the leave to appeal granted even at the time of hearing of the appeal". The same view was reiterated and followed in Vijay Syal & another Vs. State of Punjab & others (2003) 9 SCC 401.

Further, the action on the part of the petitioner thereby concealing the facts in respect of the earlier filing of the writ petitions on the same cause of action while filing the present writ petition also amounts to making misrepresentation or playing fraud upon the Court. So, in view of the 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 a writ court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the Courts are obliged to do justice by promotion of good faith. Equity is, also, known to prevent the law from the 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 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 the employment secured by fraud renders it voidable at the option of the employer." Similar view has been reiterated by the Apex Court in the 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.

Thus "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.

Mandamus is English origin. The direction in the Magna Carta that the Crown was bound neither to deny justice to anybody nor to delay anybody in obtaining justice has been recognized by this writ. The first reported case of mandamus was the Middleton's Case (1574) 3 Dyer 332b in 1573 wherein a citizen's franchise was restored. James Bagg (1615) 11 Co Rep 93b was the leading decision by which a membership of local body 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 activity, prohibition commands inactivity. While mandamus compels, certiorari corrects. 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.

In Corpus Juris Secundum Vol 55, 5 (See Halsbury's Laws of England, Vol. 1 (4th Edn.) paras 89 III), mandamus is defined thus:

"Mandamus is a writ directed to a person, officer, corporation or inferior court commanding the performance of a particular duty which results from the official station of the one to whom it is directed or from operation of law."

Thus it is an order issued by a court to a public authority asking it to perform a public duty imposed upon it by the constitution or by any other law (See State of Mysore v. K. N. Chandrasekhara, AIR 1965 SC 532) and it is a judicial remedy which is in the form of an order from a superior court (the Supreme Court or a High Court) to any government, court, corporation or the 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 the case may be, and which is in the nature of a public duty and in certain cases of a statutory duty.

While mandamus may require performance of duty, it is command is never to act in a particular manner. Mandamus cannot be used to substitute a judgment or direction of the court for that of the authority against whom it is issued.

The primary object of mandamus is to supply defect of justice. It seeks to protect rights of a 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 the law has conferred right but has created no specific remedy. Through this writ , a court can correct all errors which trend to the oppression of the subject and grant him appropriate relief.

The main function of Mandamus is to compel action. It neither creates nor confers power to act. It only commands the exercise of power already 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 precedent for the issue of mandamus is that there is in it one claiming a legal right to the performance of the legal duty by one against whom it is sought".

In Mani Subrat Jain V. State of Haryana (1977) 1 SCC 486, the Apex Court held that "it is elementary though it is be restated that no one can ask for mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected interest before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something".

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, AIR 1951 SC 41).

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, AIR 1954 SC 493)."

For the foregoing reasons, we hereby dismiss the writ petition with a cost of Rs. 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. If the petitioner Shri Dhan Prakash Budhraja fails to deposit the aforesaid amount within the specified period the 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