TMI Blog1997 (6) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued on October 15, 1996, in Special C. A. No. 7417 of 1996, and on November 7, 1996, in Special C. A. No. 9390 of 1996. According to the petitioners in Special Civil Application No. 7417 of 1996, petitioner No. 1 is a reputed chartered accountant and a social worker, while petitioner No. 2 is an advocate as well as a social worker. According to them, they are crusaders against public wrongs done by politicians, in the larger interest of public life and they have preferred this petition as public interest litigation to safeguard the interest of the public exchequer. The petitioner in Special C. A. No. 9390 of 1996 has stated that he is a social worker and he has filed the petition to point out the illegality and irregularities committed by Mr. Shankarsinh Waghela (who is respondent No. 3 in that petition) in collusion with respondent No. 4, Shri C. K. Raolji and others. According to this petitioner, these respondents have done public wrongs and have acted against the interest of the public and huge amounts were paid by them to the MLAs for supporting them to acquire power in the State of Gujarat. In Special Civil Application No. 7417 of 1996, it is alleged that respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecast on September 22, 1996, is annexed at annexure-C to the petition. Certain statements said to have been given by Dr. K. C. Patel, Girish Parmar, Pratapsinh Patel, Ramjibhai Parmar, and published in the Indian Express of September 9, 1996, were relied upon in support of the allegation that they were offered huge amounts of money and position for crossing over to the "Waghela camp". On these allegations, a direction is sought on respondents Nos. 1, 2 and 3 income-tax authorities, to thoroughly investigate into the financial aspects of Shri Shankarsinh Waghela and his associates. In Special Civil Application No. 9390 of 1996 it is alleged that a letter was written on September 1, 1995, by Shri C. K. Raolji to Shri Shankarsinh Waghela, which indicated that the payments were made to five persons named therein. According to the petitioners, more than 2 crores of rupees were given for "purchasing" the MLAs to support Shri Shankarsinh Waghela to become the Chief Minister of Gujarat. It is alleged that by using illegal means "with muscle and money power, being black money extracted from the industrialists, black-marketeers, builders, school management rackeeters, etc." Mr. Shankarsinh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s allegations made in the petition and prayed for the dismissal of the petition with exemplary costs. Learned counsel appearing for the petitioners have contended that the petitioners have no personal interest in these matters and these petitions are filed only with a view to ensure that the Income-tax Department does not shield the leaders and investigates into the allegations made in the press and brought to their notice by one of the petitioners, to ensure that the interest of the public exchequer does not suffer. According to him, the petitioners strongly apprehend that unless the investigation and inquiry are directed and monitored by this court to their logical conclusion, the income-tax authorities may not discharge their public duty and functions. It was also submitted that the CBI being an independent investigating agency, should be directed to investigate and prosecute if any offences are found to have been committed under the Income-tax Act and any other laws. It was submitted that various press cuttings and copies of other documents on which reliance was placed by the petitioners were already brought to the notice of the income-tax authorities by the petitioners but n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngharsh Samiti v. State of U. P., AIR 1990 SC 2060, in which it was held in the context of PIL, that, "this weapon as a safeguard must be utilised and invoked by the court with a great deal of circumspection and caution. Where it appears that this is only a cloak to 'feed fact ancient grudge' and enmity, this should not only be refused but strongly discouraged." It was contended that the Income-tax Act provided for powers to the income-tax authorities and those powers were not powers coupled with duty and, therefore, no question of failure of duty can arise under the Act so as to warrant issuance of a writ of mandamus under article 226 of the Constitution. Learned counsel relied upon the decision of the Supreme Court in L. Hirday Narain v. ITO [1970] 78 ITR 26 in this regard, submitting that the concept of power and the concept of duty were different concepts and duty was not necessarily to be implied in all cases where power is conferred. Learned counsel appearing for the respondent authorities submitted that the authorities are discharging their functions under the Income-tax Act and there was no need for the petitioners to apprehend that the respondent authorities will not dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions governing the powers of the public authority and cannot be given de hors the valid statutory provisions. In the present case, serious allegations are made against a high public functionary and it is apprehended that the public officers of the Income-tax Department have failed in their duties to look into the allegations of concealment of income which according to the petitioners, went into incurring of huge expenditure. This court is not at all at this stage concerned with the truth or falsity of these allegations. The question is whether there is any failure of duty on the part of the income-tax authority as alleged. If there is failure of duty on the part of the income-tax authority in discharging their statutory functions, then obviously the High Court will have jurisdiction under article 226 of the Constitution for issuing a writ of mandamus. This has nothing to do with the powers of the apex court under article 142 of the Constitution, since the High Court would in such a case be exercising its own constitutional powers under article 226 and will not be assuming the plenary powers of the Supreme Court under article 142 of the Constitution. Therefore, the preliminary cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer can refuse to discharge his function even when the statutory provisions require him to act in a particular way. In the very nature of the things empowered to be done, and in the very nature of the object for which the provisions of the Income-tax Act are enacted as also the conditions in which the powers are to be exercised by the Assessing Officer under the Act, it is clear that these powers are coupled with a duty to exercise them when the statutory provisions warrant their exercise. If a statute invests a public officer with an authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the things when a party interested and having a right to apply, moves in that behalf, and circumstances for exercise of that authority are shown to exist. Even if the words used in the statute are prima facie enabling, the courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right, public or private, of a citizen or for the safeguard of public revenue. In Hirday Narain [1970] 78 ITR 26 (SC), where an application for rectification of a mistake apparent on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e preliminary objection raised on behalf of respondent No. 4 against the maintainability of the petition and we are of the view that the petitions cannot be thrown out at the threshold without ascertaining whether the concerned income-tax authorities are alive to their duties under the Act in the context of the allegations made against a high State functionary. It has been brought on record by the affidavit of the Director-General of Income-tax that a letter dated October 5, 1995, was received even before filing of these petitions by the Chief Commissioner of Income-tax from the free legal-aid society, a copy of which is at annexure-A to the petition, regarding the expenses incurred on the stay of the BJP MLAs at Khajuraho. It is stated that the said letter which was sent by the petitioner No. 2 was transferred to the Deputy Director of Income-tax (Investigation) who, in turn, after the verification of the complaint, wrote to his counterpart at Jabalpur for getting necessary enquiries conducted. It is stated that in view of the news story published in newspapers, investigation was started on the subject in February 1996, and the enquiry was allotted to the concerned unit. On Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry prescribed under the law. The statutory functions of these Assessing Officers culminate in certain statutory orders against which appeal and revision provisions are made under the Act and beyond which there are provisions for making references to the High Court and filing appeals to the Supreme Court. In the very nature of these statutory provisions, there is no scope for the High Court to monitor the proceedings by day-to-day supervision of the manner in which the statutory authority exercises its function. Obviously, the High Court cannot be expected to assume the powers of the statutory authorities or guide their hand and action in a particular direction. That surely is not the scope of mandamus. The only aspect which can merit the attention of the High Court is to ascertain whether the income-tax authorities have failed in their duty. In the instant case, we are satisfied that the income-tax authorities are bona fide looking into the matter as is expected of them under the law and there is, therefore, no need to issue any directions to them or to keep the petitions pending. As regards directions which are sought for investigation into the allegations through the CBI, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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