R.K. Abichandani, J.
1. In these two writ petitions which were heard together and are being disposed of by this common judgment, the petitioners have sought a direction on the IT authorities to enquire into and investigate the sources of income in the light of huge expenses alleged to have been incurred by respondent No. 4 when several BJP MLAs were taken to Khajuraho in October, 1995, and during the marriage reception of the son of the respondent No. 4 Mr. Shankarsinh Lakshmansinh Waghela and in holding 'Mahasammelan' at Ahmedabad on 22nd August, 1996. A direction is also sought in Special CA No. 9390 of 1996 that the CBI should be directed to investigate into the incident and file a complaint against Mr. Shankarsinh Lakshmansinh Waghela, the Chief Minister of the State and Shri C. K. Raolji.
2. Notice was issued on 15th October, 1996, in Special CA No. 7417 of 1996 and on 7th November, 1996 in Special CA No. 9390 of 1996.
3. According to the petitioners of Special Civil Appln. No. 7417 of 1996, the petitioner No. 1 is a reputed chartered accountant and a social worker, while the petitioner No. 2 is an advocate as well as a social worker. According to them they are crusaders against public wrongs done by the 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 of Special CA 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 the 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.
4. In Special Civil Appln. No. 7417 of 1996, it is alleged that the respondent No. 4 Mr. Shankarsinh Waghela earlier belonged to the Bharatiya Janata Party and with a view to overthrow the elected council of ministers, he had revolted 'with muscle and money power .....' and misusing blackmoney, enticed the elected BJP legislators and lured them by illegal means taking them to Khajuraho in Madhya Pradesh by a chartered plane and treating them in a five star hotel, thereby incurring expenses of lacs of rupees with a view to destabilise the ruling Government. It is further alleged that the respondent No. 4 had arranged an expensive marriage reception for his son's wedding wherein more than 50,000 persons attended and were treated sumptuously to dinner, the cost of which was not less than Rs. 200 per head. According to the petitioners, the said respondent is expected to explain the sources of the huge expenditure incurred in the marriage reception of his son and at Khajuraho. It is further alleged that Mr. Shankarsinh Waghela - the respondent No. 4 - with a view to demonstrate his grip and impact on the legislators, arranged a mahasammelan on 22nd August, 1996, spending a huge amount for collecting people to attend the Sammelan at Ahmedabad. It is also alleged that the respondent No. 4 thereafter had taken about 25 legislators of the Bharatiya Janata Party to Diu, housing them in a five star hotel and tempting them to money which they could not have earned in their whole life.
According to the petitioner No. 2, he had made several representations to the Chief CIT, the respondent No. 1, for investigating and making inquiries into the sources of acquisition of the amounts which were incurred as expenses on such huge scale, but no action was taken under the provisions of Ss. 131, 132, 132A, 133, 133A, 133B and 135 of the IT Act, which he ought to have taken in the interest of public exchequer. According to the petitioners, the reports published in the newspapers also provided this information to the IT Department. However, the Chief CIT and the Director General of IT, who are respondents Nos. 1 and 2, did not take any action against the respondent No. 4 because he was a political leader.
The petitioners have set out so-called admissions made by the respondent No. 4 in an interview telecast by Zee TV at 10.00 AM on 22nd September, 1996. A typed version of the interview said to have been telecast on 22nd September, 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 9th September, 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 the respondents Nos. 1, 2 and 3 IT authorities, to thoroughly investigate into the financial aspects of Shri Shankarsinh Waghela and his associates.
5. In Special Civil Appln. No. 9390 of 1996, it is alleged that a letter was written on 1st September, 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 Shankar Singh Waghela to become Chief Minister of Gujarat. It is alleged that by using illegal means 'with muscle and money power, being black money extracted from the industrialists, blackmarketeers, builders, school management recketers, etc.,' Mr. Shankarsinh Waghela 'purchased' the MLAs for supporting him to become the Chief Minister of Gujarat. Allegations of offers being made to various MLAs at the behest of Mr. Shankarsinh Waghela have been made in the petition and as noted above, a direction is sought for an investigation through the CBI and for a complaint being filed against Shri Waghela and Shri Raolji.
6. Mr. Shankarsinh Waghela (respondent No. 4 of Special CA No. 7417 of 1996 and respondent No. 3 in Special CA No. 9390 of 1996) has, in his affidavit in reply, strongly refuted the allegations made by the petitioners. According to him, the allegations made against him are false assertions and are politically motivated. The letter dt. 1st September, 1996, allegedly written by Shri C. K. Raolji to him is, according to him and Shri Raolji, clearly forged and fabricated. Shri Raolji in his affidavit in reply filed in Special CA No. 9390 of 1996 has categorically denied the averments about his having written the alleged letter dt. 1st September, 1996. It is stated that an immediate denial of that letter on the very next day was published.
It is stated that there is no public interest involved in the petition. It is further alleged that 'the petition has been filed only with a view to settle political vendetta and to further the political interest of BJP'. According to this respondent, the petition is an attempt to bring political fight into the Court and the petitioner are not acting bona fide and have no locus standi to maintain the petition. It is contended that the sole basis of the petition is the latter dt. 5th October, 1995, allegedly addressed by the petitioner No. 2 to the Chief CIT and that the said letter was politically motivated. According to this respondent, the request made to the IT authorities to take direct action under S. 132 of the IT Act, was on the face of it untenable. The respondent No. 4 has refuted the allegations made against him in the petition and prayed for dismissal of the petition, which according to him contains fabricated and unwarranted allegations against him, with a view to tarnish his image. It is contended that exemplary costs should be awarded to this respondent, so as to discourage mala fide abuse of process of this Court.
7. Mr. C. K. Raolji in his affidavit filed in Special CA No. 9390 of 1996 has refuted various allegations made in the petition and prayed for the dismissal of the petition with exemplary costs.
8. The 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 IT 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 IT 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 IT 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 IT authorities by the petitioners but no action has been taken which has created an apprehension in the minds of the petitioners that the authorities will not discharge their duties under the law.
9. The learned counsel appearing for the respondent No. 4 raising a preliminary contention against the maintainability of this petition, strongly contended that this Court should not entertain a petition of this nature, which according to him, was filed with an oblique political motive by the petitioners who had a personal axe to grind against respondent No. 4. It was contended that the High Court cannot exercise its powers under Art. 226 by directing such enquiries and investigations as are sought for in these petitions which are not bona fide public interest litigation, but are a political blackmail. The learned counsel argued that the direction for exercise of power which can be given by the Supreme Court under Art. 142 of the Constitution of India cannot be given by the High Court while exercising powers under Art. 226. It was submitted that the cases decided by the Supreme Court in exercise of its powers under Art. 142 cannot afford any guidance to the High Courts while exercising their powers under Art. 226.
Relying upon the decision of the Supreme Court in Mohammed Anis vs. Union of India 1994 Suppl. (1) SCC 145, it was contended that since the power of the apex Court under Art. 142(1) cannot be diluted merely because of the provisions of a statute such as grant of State Government's permission under the Delhi Special Police Establishment Act, the Supreme Court could issue directions to the CBI in exercise of its plenary powers under Art. 142(1) which the High Court does not possess. Reliance was also placed on the decisions of the Supreme Court in Union Carbide Corporation vs . Union of India : AIR1992SC248 and State of West Bengal vs . Sampatlal : 1985CriLJ516 to emphasise that the power under Art. 142(1) was at an entirely a different level and of different quality. It was, therefore, submitted that directions cannot be given by the High Court under Art. 226 to the CBI to make investigation in the matter, since the Delhi Special Police was constituted under the Delhi Special Police Establishment Act, 1946, and could function only under that Act. The learned counsel for the respondent also relied upon the decision of the Supreme Court in Chhetriya Tardushan Mukti Sangharsh Samiti vs . State of UP : [1990]3SCR739 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 great deal of circumspection and caution. Where it appears that this is only a cloak to 'feed fact ancient grodge' and enmity, this should not only be refused by (sic) strongly discouraged'. It was contended that the IT Act provided for powers of the IT authorities and these 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 Art. 226 of the Constitution. The learned counsel relied upon the decision of the Supreme Court in L. Hriday Narain vs . ITO : [1970]78ITR26(SC) 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.
10. The learned counsel appearing for the respondent authorities submitted that the authorities are discharging their functions under the IT Act and there was no need for the petitioners to apprehend that the respondent authorities will not discharge their statutory functions merely because allegations were made against a person holding a high public office. An affidavit has been filed by the Director General of IT, showing the action that is being taken in the matter.
11. There can be no doubt about the proposition that the powers of the Hon'ble Supreme Court under Art. 142 of the Constitution empowering the Supreme Court to make any decree or order as may be found by it to be necessary for doing complete justice in any case or in a matter pending before it are of plenary nature and similar powers do not vest in the High Court and cannot be invoked from the concept of any inherent powers of the High Court nor can such powers be read in Art. 226 of the Constitution. As held by the Supreme Court in State of Punjab vs . Surinderkumar : [1992]194ITR434(SC) , the Constitution has, by Art. 142, empowered the Supreme Court to make such order as may be necessary 'for doing complete justice in any case or matter pending before it' which authority the High Court does not enjoy. It was held that the jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitation discussed and described by the judicial decisions, and it cannot transgress the limit on the basis of whims or subjective sense of justice varying from judge to judge. Thus, the High Court would not be entitled to pass any order, which it thought fit in the interest of justice, but, which may be contrary to a statutory provision. [See State of Gujarat vs . Shankarji Chaturji & Ors. : (1996)3GLR755 ].
However, from this proposition, one cannot contend that in the matters in which the Hon'ble Supreme Court had exercised powers under Art. 142, those matters stand excluded from the ambit of powers of the High Court under Art. 226 of the Constitution. The scope of the powers of the High Court to issue writ and like orders under Art. 226 is to be considered in the context of the controversy that may arise before the High Court and the provisions of Art. 226. Therefore, when a question regarding issuance of a writ of mandamus arises and the petitioner establishes failure of duty on the part of a public authority, the High Court in its discretion can issue direction on the public authority to discharge its statutory functions. These directions would obviously be given only within the ambit of the statutory provisions 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 IT Department have failed in their duties to look into the allegations of concealment of income which according to the petitioners, went in to 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 IT authority as alleged. If there is failure of duty on the part of the IT authority in discharging their statutory functions, then obviously the High Court will have jurisdiction under Art. 226 of the Constitution for issuing a writ of mandamus. This has nothing to do with the powers of the apex Court under Art. 142 of the Constitution, since, the High Court would in such a case be exercising its own constitutional powers under Art. 226 and will not be assuming the plenary powers of the Supreme Court under Art. 142 of the Constitution. Therefore, the preliminary contention against the High Court's power to entertain such public interest litigation on this count, fails. Moreover, it cannot be said that there is no public interest involved when the nature of the controversy is of public nature and the public will be vitally concerned and legally interested in the result of the inquiry into the allegations. Both ways it would be in public interest to find out the truth or falsity of allegations.
12. It will be noticed from the provisions of the IT Act that the AOs have ample powers to proceed against tax evaders. An assessee whose income exceeds the maximum amount which is not chargeable to income-tax has an obligation to file a return of his income in the prescribed form and verified in the prescribed manner, as provided by S. 139 of the Act. The AO is required to make enquiry before assessment, as provided under S. 142 of the Act. With a view to ensure that an assessee has not understated the income or has not underpaid the tax in any manner, the AO shall, if he considers it necessary or expedient, serve a notice on the assessee requiring him to attend his office and produce evidence as provided under sub-s. (2) of S. 143 of the Act. Section 144 empowers the AO to make the assessment to the best of his judgment in the circumstances mentioned therein. Where the income reasonably appears to have escaped assessment, the AO is empowered to issue notice to the assessee to disclose fully and truly all material facts necessary for his assessment. There are provisions regarding rectification of mistakes under S. 154 and appeal and revision provisions under Chapter XX of the Act under which the aggrieved assessee or even the Department can approach higher forums mentioned therein. There are also provisions for making reference to the High Court and filing appeals to the Supreme Court, in that chapter.
13. It will thus be seen that the AO has important statutory functions to discharge. It can never be said that their power to make assessment or to ascertain whether there has been full and true disclosure are powers which are not coupled with duty, to discharge those functions. The AOs must, in accordance with the statutory provisions, discharge their functions and it cannot be said that an AO 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 IT Act are enacted as also the conditions in which the powers are to be exercised by the AOs 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 infera 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.
14. In Hriday Narain (supra), where an application for rectification of mistake apparent on record was made under S. 35 of the IT Act, 1922, it was held by the Supreme Court that, it cannot be said that the jurisdiction of the ITO under S. 35 to rectify mistake was discretionary and, therefore, even if the conditions for its exercise are shown to have existed, he can decline to exercise the power. It is, therefore, implicit in the nature of power and its entrustment to the authority invested with such functions of assessment under the Act to exercise the power when the conditions for its exercise are shown to exist and refusal to exercise the powers when required to be exercised under the law would amount to failure of duty. It can, therefore, never be said that writ of mandamus cannot issue against an IT authority which may have failed in discharge of its statutory functions in a given case. This power clearly flows from the nature of the writ of mandamus which the High Court can issue under Art. 226 of the Constitution.
15. The contention that there are allegations in the petition which indicate that political rivalry is the basis of the petition, is not sufficient to hold that the petition is not maintainable on that count. In a matter of this nature it is the political rivalry which would prompt certain facts to be brought to surface; matters which otherwise, in an atmosphere of complete harmony amongst political forces, would hardly come to light. One cannot expect such allegations coming from friends and well-wishers. Therefore, to throw away petitions merely when some political slant may be there, would not be appropriate and the Court may have to ascertain prima facie the allegations which have bearing on failure of duty on the part of public authorities while not being coloured by any exaggerations or incidental motives that may be underlying the matter. It would not be the duty of the Court at all in such matters to verify or express any opinion on the truth or otherwise of the allegations which would be the function of the concerned public authority required to investigate and decide the matter. The only aspect which is required to be examined is whether the concerned authority is taking into consideration the subject matter which may bring about a situation where it is required to function in a particular way as statutorily enjoined.
16. For the above reasons, we are unable to uphold the preliminary objection raised on behalf of the respondent No. 4 against the maintainability of the petition and we are of the view that the petitions cannot be thrown away at the threshold without ascertaining whether the concerned IT authorities are alive to their duties under the Act in the context of the allegations made against a high State functionary.
17. It has been brought on record by an affidavit of the Director General of IT that a letter dt. 5th October, 1995, was received even before filing of these petitions by the Chief CIT 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 Dy. 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 13th August, 1996, a meeting took place amongst the concerned officers of the IT Department as to the mode of enquiry to be adopted. An urgent report was called for from the concerned units investigating the matter. Some of the reports were received on 31st October, 1996. A report was also received on 6th November, 1996, from the Dy. Director of IT, Jabalpur, as regards the expenditure on the stay of MLAs at Khajuraho. It is also stated on oath that statements of various persons connected with the occasions stated in the petition, have been recorded under S. 131 and/or 133A of the IT Act. Statements of several persons who are named in the affidavit in reply have been recorded by the Department and summons have been issued to certain MLAs named in the affidavit, to furnish particulars of their incomes and investments. The respondent No. 4 was also issued a letter and after receipt of his reply a query list along with the summons was issued. After giving the necessary particulars, it has been stated that the IT Department is proceeding with the investigation. It is stated that since the alleged incidents have taken place at various places, the concerned Asstt. Directors of Investigation are entrusted with the enquiry and investigation is proceeding. It is stated that the IT Department has initiated the action of investigation and the same is being pursued thoroughly and that on completion thereof, necessary action will be taken in accordance with law.
We have no reason to doubt these averments made on oath on behalf of the respondent authorities which clearly indicate that these IT authorities are quite aware of their functions under the Act in the context of the allegations made and that they have been doing the investigations in accordance with law and this is not a case where there is any failure of duty on their part.
18. It was contended on behalf of the petitioners that these petitions should, be kept pending and the particulars of the investigation should be examined from time to time by this Court. It is not for the High Court to do any day-to-day monitoring of any statutory investigations which are being carried out by the authorities. The High Court cannot substitute its own opinion for the opinion of the statutory authorities or prescribe its own mode in place of the mode of investigation and enquiry prescribed under the law. The statutory functions of these AOs 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 IT authorities have failed in their duty. In the instant case, we are satisfied that the IT 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.
19. As regards directions which are sought for investigating into the allegations through the CBI, we find that there is absolutely no ground made out at this premature stage where not even offences are alleged, to issue any directions to the said special investigating agency. We, therefore, cannot accept the contention that directions should be given to the CBI to investigate in the matter. More so, when the concerned authorities of the IT Department are investigating into the allegations, the outcome of which cannot be known at this stage.
20. For the above reasons, we hold that no directions are required to be given as sought for by the petitioners and the petitions fail. Notice is, therefore, discharged in both the petitions with no order as to costs. The Civil Appln. No. 3589 of 1997 in Spl. Civil Appln. No. 7417 of 1996 also stands disposed of with no order as to costs.