1997 Supreme(Guj) 257

Gujarat High Court
Judgename :R.A.MEHTA, R.K.Abichandani
JAYAMAL JAYANTILAL THAKORE - Appellant
Versus
CHIEF COMMISSIONER OF income-TAX - Respondent
S.C.A. 7417 of 1996
Decided On : 06/18/1997

Headnote:(a) Constitution of India, 1950 - Arts. 142 & 226 - Provisions under - Scope of - Provision under Art. 142 empowers the Supreme Court to make any decree or order necessary for doing complete justice - Powers are of plenary nature - Such powers can be read in Art. 226 under the concept of inherent powers of High Court - Consequently High Court would not be entitled to pass any order which though fit in the interest of justice but contrary to a statutory provision.

       There can be no doubt about the proposition that the powers of the Honble 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 Supreme Court in State of Punjab vs. Surinderkumar, reported in AIR 1992 SC 1593, 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.

       [Para 11]

       (b) Constitution of India, 1950 - Art. 226 - Petition seeking directions on Income Tax authorities to enquire into & investigate sources of income of respondent No. 4 - Maintainability & relief admissible - Writ of mandamus in the form of direction to public authority can be issued only on establishment of the facts of failure of duty on part of such authority - In this context it has been stated that Income Tax Department has already initiated the action of investigation & the same is being pursued throughly & necessary action will be taken on completion - Affidavit is filed in support & there is no reason to doubt the averments so made - Thus this is not a case of failure of duty on part of public authorities - Contention that till making investigation final by Income Tax Authorities petitions may be kept pending not acceptable.

       The scope of the powers of the High Court to issue writs 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.

       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 Courts power to entertain such Public Interest Litigation on this count, fails.

       [Para 11]

       It is 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 be issued against an Income Tax 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.

       [Para 14]

       After giving the necessary particulars, it has been stated that the Income Tax Department is proceeding with the investigation. It is stated that since the alleged incidents have taken place at various places, the concerned Assistant Directors of Investigation are entrusted with the enquiry and investigation is proceeding. It is stated that the Income Tax 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.

       [Para 17]

       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.

       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.

       [Para 18]