9911796707
TMI Blog1998 (2) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... of mandamus directing the respondents, not to give effect to the third paragraph of the aforesaid communication/letter dated November 25, 1997 (annexure-2), (iii) issue a writ, direction or order in the nature of mandamus restraining the Commissioner of Income-tax, Kanpur (respondent No. 3), from reopening or reviewing the certificates which have already been granted under the provisions of the scheme, (iv) issue a writ, order or direction in the nature of mandamus directing respondent No. 3 to grant certificates in respect of declarations which have already been submitted to him without taking into account the contents of para. 3 of the impugned communication dated November 25, 1997 (annexure-2), (v) issue a writ, direction or order in the nature of mandamus directing the respondents to accept the declarations made as clarified by means of D. O. dated October 3, 1997, (vi) issue a writ, direction or order in the nature of mandamus extending the last date of submitting the declaration, viz., December 31, 1997, in the event the relief is not granted by this court on such date and in such time that no time is left to the clients of members of petitioner No. 1 and of petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. The impugned letter dated November 25, 1997, copy of which is annexure "2" to the writ petition makes a change in the aforesaid clarifications and the impugned paragraph 3 of this letter stated as under : "3. The matter has been reconsidered by the Government. It is now decided that in all such cases of unusual declaration of silver articles, utensils, gold or silver coins, watches, etc., it should be treated as if they have been acquired in the current year unless the declarant is able to produce credible and satisfactory evidence about the year of acquisition. A simple affidavit would not suffice. Where such evidence is not produced, the value as on April 1, 1997, would be treated as value for declaring income under the VDIS-1997. In cases where certificates have already been issued, the Commissioners concerned should call the declarants and ask them to produce credible and satisfactory evidence of the year of acquisition, failing which the Commissioner should take steps to review the certificates." It is stated in the writ petition that the change made through the impugned letter dated November 25, 1997, is illegal being against the earlier clarification contained in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecrecy which is contemplated under the provisions of the scheme, the members of petitioner No. 1, and petitioner No. 2 are enjoined not to disclose the names of those clients. In paragraph 29 of the writ petition, it is stated that the grievance of such clients, which has necessitated the filing of this writ petition is stated in the following paragraphs. The petition then states that the income disclosed under the scheme represented gold and silver utensils, gold and silver coins, watches and other articles which were not covered by the definition of "jewellery". The value thereof was disclosed to be the same as was the quantum of the voluntarily disclosed income of the assessment year for which the income was disclosed and the declarant made payment of income-tax at the rate provided therein and submitted proof of payment thereof as required under the scheme. In some of the cases, the Commissioner of Income-tax granted certificates to all the clients who had made declarations up to November 18, 1997. It is averred that the scheme does not contemplate any enquiry about the disclosed income or the assets or about the assessment year for which the income was disclosed. Reference is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in public interest and the purpose is to see that the scheme as contained in the provisions of the Finance Act 1997 is properly implemented and serves its purpose fully of bringing into the main stream the hidden undisclosed income and at the same time raise proper revenue for the State which is to be spent for the benefit of the nation. The writ petition, therefore, is intended to serve a large public interest and, therefore, the petitioners who are practising on the taxation side are deeply concerned and involved in the proper implementation of the scheme. He placed reliance on S. P. Gupta v. President of India, AIR 1982 SC 149, which according to him is the Bible of the law about public interest litigation and about the question of locus standi. That was a case in which Sri S. P. Gupta (who coincidently is also counsel for the present petitioners) and some others challenged, inter alia, a circular letter issued by the then Law Minister to the Chief Ministers requesting them to : "(a) Obtain from all the Additional Judges working in the High Court of your State their consent to be appointed as permanent judges in any other High Court in the country. They could, in addition, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons, in this court under article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as under-trial prisoners languishing in jails without a trial, inmates of the Protective Home in Agra or Harijan workers engaged in road construction in the Ajmer District, who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this court will not insist on a regular writ petition to he filed by the public spirited individual espousing their cause and seeking relief for them. This court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this court prescribing the procedure for moving this court for relief under article 32 and they require various formalities to be gone through by a person seeking to approach this court. But it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assist the court in dispensing justice and it can hardly be disputed that without their help, it would be well nigh impossible for the court to administer justice. They are really and truly officers of the court in which they daily sit and practice. They have, therefore, a special interest in preserving the integrity and independence of the judicial system and if the integrity or independence of the judiciary is threatened by any act of the State or any public authority, they would naturally be concerned about it, because they are equal partners with the judges in the administration of justice. Iqbal Chagla and others cannot be regarded as there bystanders or meddlesome interlopers in filing the writ petition. The complaint of the petitioners in the writ petition was that the circular letter issued by the Law Minister constituted a serious threat to the independence of the judiciary and it was unconstitutional and void and if this complaint be true, and for the purpose of determining the standing of the petitioners to file the writ petition, we must assume this complaint to be correct the petitioners already had locus standi to maintain the writ petition. The circular letter, on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners as unconstitutional or illegal action that had the effect of impairing the independence of the judiciary. It was observed that the profession of lawyers is an essential and integral part of the judicial system and they are really and truly officers of the court in which they daily sit and practice and, therefore, they have a special interest in preserving the integrity and independence of the judicial system. Sri Gupta, learned counsel for the petitioners, contended that the present case also has a similar characteristic and the petitioners who are tax practitioners have a special interest in the proper administration of the scheme under consideration and, therefore, they can challenge the impugned instructions which are contrary to the content and tenor of the scheme and are likely to deter an unspecified number of prospective declarants. Sri Bharat Ji Agarwal, senior advocate, learned counsel for the respondents, on the other hand, contended that this writ petition cannot be equated with public interest litigation and is a writ petition intended to serve the interest of a few unscrupulous citizens, who admittedly have evaded tax in the past and are attempting to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther requested that no request for rogatory or freezing bank account be made to Swiss Government unless the concerned persons are noticed and heard on the subject. It is further requested that the petitioner may be permitted to join during inquiry before this court in the capacity of public interest litigant. It is further requested that inquiry under section 340 of the Criminal Procedure Code, be held to determine the alleged offence committed by various persons and till then proceedings of rogatory be stopped." The learned Special Judge dismissed the application and the matter reached the Supreme Court, which ordered as under : "1. Mr. H. S. Chowdhary has no locus standi (a) to file the petition under article 51A as public interest litigant praying that no letter rogatory/request be issued at the request of the CBI and he be permitted to join the inquiry before the special court which on February 5, 1990, directed issuance of letter rogatory/request to the competent judicial authorities of the confederation of Switzerland; (b) to invoke the revisional jurisdiction of the High Court under section 397 read with section 401 of the Code of Criminal Procedure challenging the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.' . . . 104. In Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U. P. [1990] 4 SCC 449; AIR 1990 SC 2060, Sabyasachi Mukharji C. J. observed (paragraph 8 of AIR); 'While it is the duty of this court to enforce fundamental rights, it is also the duty of this court to ensure that this weapon under article 32 should not be misused or permitted to be misused creating a bottleneck in the superior court preventing other ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Solicitor General, Mr. A. D. Giri and Mr. Jethmalani, senior counsel. A perusal of the petitions filed by H. S. Chowdhary before the special judge and the High Court clearly unfolds that Mr. Chowdhary appears to be very much concerned with the personal and private interest of the accused in the criminal case and there is absolutely no involvement of public interest. Can it be said that this litigation is in the nature of PIL to vindicate and effectuate the public interest? The emphatic answer would be 'not even a single ray of the characteristic of public interest litigation is visibly seen. . . . 118. Indeed, we are surprised to note that in the petition filed before the High Court, Mr. Chowdhary has stated that it is his duty to see that 'individuals' get justice from the Indian courts. From whichever angle we survey and audit the contentions in both the petitions before the courts below and the petition filed before this court, there can be no escape except to come to the conclusion that Mr. Chowdhary has no locus standi at all to file these petitions, as found by the courts below." From a perusal of the two aforesaid judgments that exhaustively deal with the issue of locu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s interveners having absolutely no public interest except for personal gain or private profit either for themselves or as proxy of others or for any other extraneous motivation or for the glare of publicity, break the queue muffling their faces by wearing the mask of public interest litigation, and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the court never moves which piquant situation creates a frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system." Admittedly, the petitioners want to serve the cause of that small group of people who have evaded taxes in the past and who want to convert their black wealth into white by making an effective payment of only one or two per cent. as against 30 per cent. prescribed in the scheme. Such persons or a group thereof cannot in our view be termed as "public" in the sense in which this word is used in public interest litigation. The litigation contemplated in public interest is to relate to a general public injury affecting the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividually. In fact, in so far as the two individual judges, namely, S. N. Kumar and K. B. N. Singh JJ., were concerned the objection of locus standi was sustained but since the two had themselves put in appearance as petitioners the contention of locus standi in relation to them became redundant and was not pressed. In the present case, as discussed above, the injury complained of is not of the nature of injuries projected in S. P. Gupta's case, AIR 1982 SC 149, or in other cases on the subject. It is an injury that is supposed to adversely affect a small affluent class of people and is not resulting from the violation of fundamental rights or some provisions of the Constitution of India. The petitioners when they challenged the impugned instruction cannot be said to be acting in public interest only. They have an oblique interest in the matter because it is they who must have advised their clients who either on their own or on the advice of the petitioners were able to find a hole in the scheme which, funnily enough, placed a restriction on the disclosure of the value of the jewellery and bullion on April 1, 1987, or afterwards, but left the field free in relation to other assets. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation of secrecy is on the Revenue authorities and the individual declarant is not debarred from saying that he has made a declaration under the scheme. Further, for filing a writ petition of this nature, it is not necessary to give details of the income declared and of the assets which represent that income. It could be sufficient to state that a certain quantity of income represented by assets like gold and silver utensils or coins has been declared. Therefore, the declarants cannot be held to be a disabled group of persons. There is yet another reason why such a writ petition by the legal practitioners should not be entertained. As observed by the Supreme Court in S. P. Gupta, AIR 1982 SC 149 : "the profession of lawyers is an essential and integral part of the judicial system . . . They assist the court in dispensing justice and . . . without their help, it would be well-nigh impossible for the court to administer justice. They are really and truly officers of the court". In State of U. P. v. U. P. State Law Officers Association AIR 1994 SC 1654, the Supreme Court explained the role of a lawyer in the following words : "The relationship between the lawyer and his cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his cause. The barrister must defend him to the end. Provided only that he is paid a proper fee or in the case of a dock-brief a nominal fee. He must accept the brief and do all he honourably can on behalf of his client. I say "all he honourably can" because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is a mouth piece of his client to say what he wants; or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously mis-state the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud that is without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents even those that are fatal to his case. He must disregard the most specific instructions of his client if they conflict with his duties to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it he is offending against the rules of the prof ..... X X X X Extracts X X X X X X X X Extracts X X X X
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