While drawing the clear red lines, the Gauhati High Court in an extremely laudable, landmark, learned and latest judgment titled Gaurav Upadhyay v. State of Assam and Ors. in Case No. : WP(C)/1867/2022 pronounced as recently as on September 16, 2022 has made it pretty clear that it cannot exercise powers under writ jurisdiction to enforce legal statutory duties of the State, which do not have any corresponding enforceable legal right qua the citizens. The Single Judge Bench of Hon’ble Mr Justice Michael Zothankhuma remarked that if the scope of writ jurisdiction under Article 226 is expanded to such an extent, the Courts will be flooded and become “chock-a-block” with cases. The Court was dealing with a plea that was filed by the Superintendent of Police in Assam’s Karbi Anglong district, seeking disciplinary as well as criminal action against the then SP in the Assam Police (CID) (respondent) for giving false evidence to obtain a Scheduled Tribe (Plains) certificate in favour of his daughter. The genesis of the case is in a FIR lodged by the respondent, alleging that the petitioner had outraged the modesty of her daughter. It was the case of the petitioner that though none of his rights had been violated, however, a writ of mandamus can be issued for initiation of disciplinary and criminal action against the respondent for her fraudulent acts. On the contrary, the respondent claimed that since no legal right of the petitioner has been violated, as such, he cannot maintain the present writ petition. The Court agreed with the respondent that in order that a mandamus may be issued to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Hon’ble Mr. Justice Michael Zothankhuma of Gauhati High Court sets the ball rolling by first and foremost putting forth in para 1 that, “Heard Mr. KN. Choudhury, learned senior counsel assisted by Mr. NJ Khataniar, learned counsel for the petitioner. Also heard Mr. K Goswami, learned senior counsel assisted by Mr. J Borah, learned counsel for the respondent No. 6, Mr. R Dhar, learned counsel for the respondent No. 2 as well as Mr. JK Goswami, learned counsel for the respondent Nos. 1, 3 and 4. No one appears for the respondent No. 5.”
Do note, the Bench then stipulates in para 2 that, “The maintainability of the writ petition is being decided. The issue is whether a writ of mandamus will lie, in the absence of violation of any of the petitioner’s legal or fundamental right.”
To put things in perspective, the Bench then envisages in para 3 that, “The petitioner was the Superintendent of Police of Karbi Anglong, while the respondent No. 6 was the Superintendent of Police CID in the Assam Police at the relevant time.
The petitioner has prayed for a direction to be issued to the respondent authorities, to initiate Disciplinary Proceedings and Criminal Proceedings against the respondent No. 6/informant and other persons, involved in obtaining the Schedule Tribe (Plains), ST (P), certificate in favour of the daughter of the respondent No. 6, in terms of the judgment of the Apex Court in Kumari Madhuri Patil & Another Vs. Addl. Commissioner, Tribal Development & Others, reported in (1994) 6 SCC 241. The further prayer of the petitioner is that the respondent No. 6 should be prosecuted for commission of an offence under Section 191, 193 and 195 IPC, i.e., for giving false evidence and fabricating false evidence, for obtaining the ST (P) certificate for her daughter.”
While citing the relevant case law, the Bench then specifies in para 16 stating that, “In the case of Kumari Madhuri Patil & Another Vs. Addl. Commissioner, Tribal Development & Others, reported in (1994) 6 SCC 241, the Apex Court has stream-lined the procedure for issuance of a social status certificate, their scrutiny and approval, in paragraph 13 of the said judgment. Paragraph 13 (14) of the said judgment provides that in case the certificate obtained or social status claimed is found to be false, the parent/ guardian/ the candidate should be prosecuted for making false claim. Paragraph 13 (14) of the said judgment is reproduced below:-
“13(14). In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.””
As it turned out, the Bench then points out in para 10 that, “On a perusal of the ST (P) certificate dated 21.08.2020 issued by the office of the Deputy Commissioner, Kamrup (Metro), it is seen that the issuance of the certificate had been recommended by the President of the All Assam Tribal Sangha. As the application made by the respondent No. 6 for issuance of a caste certificate in favour of her daughter was not a part of the writ petition, this Court had directed the respondent No. 6 to produce the same. The same has been produced and a copy has also been furnished to the other side. On perusal of the same, it is seen that the respondent No. 6 had mentioned the fact that her deceased husband belonged to the OBC (Ahom) caste and that after his death on 04.10.2012, the respondent No. 6 had been bringing up her two children as a single parent, with the active support of her mother and three siblings, as per the custom and way of life of the Miri community. The application for issuance of a caste certificate made by the respondent No. 6, also states that the judgment of the Supreme Court in Rameshbhai Dabhai Naika vs. State of Gujarat and Ors. should be considered by the Deputy Commissioner, Kamrup (Metro), while considering issuance of a caste certificate to the daughter of the respondent No. 6. In Rameshbhai Dabhai Naika vs. State of Gujarat and Ors., reported in 2012 3 SCC 400, the Apex Court has held that children of Scheduled Caste/Tribe single mothers and forward caste fathers, can take the caste of their mothers, if such child is brought up by the mothers, who belong to the community and faced the same deprivations, indignities, humilities and handicaps as the other members of the community. The application of the respondent No. 6 has also referred to judgments of the Bombay High Court, Gauhati High Court and Madras High Court in support of her prayer for issuance of a ST (P) certificate for her daughter.”
Be it noted, the Bench then enunciates in para 18 that, “Though the counsel for the petitioner has tried to convince this Court that the attempt by the respondent No. 6 to influence the Deputy Commissioner, Kamrup (Metro) to issue a caste certificate, by considering the judgments of the Apex Court and the High Court was a mischief played by the petitioner, this Court is of the view that no criminal offence has been committed, in the respondent No. 6 trying to take the help of the decisions of the Supreme Court and the High Courts, if the respondent No. 6 is of the view that those decisions support her case. The ultimate decision to be taken is in any event in the hands of the Deputy Commissioner, who issues the caste certificate and the attempt by the respondent No. 6 to take the help of the decisions of the Supreme Court and the High Court to her advantage, cannot tantamount to giving false evidence. Even while hearing arguments in Court, counsels have relied upon various judgments in support of their arguments which may not be relevant. The same would not mean that they are giving false evidence. Further, the different stands taken by the respondent No. 6, while filling up school admission forms and praying for a ST (P) certificate for her daughter at a later stage without making any false statement, only reinforces the fact that a person can change his/her mind and views as time progresses.”
Quite significantly, the Bench then hastens to add in para 19 stating that, “The issue as to whether the daughter of the respondent No. 6 was deprived or was facing the same deprivations/handicap, as other members of the Miri community, has already been decided by the Scrutiny Committee. There is nothing in the Scrutiny Committee report to the effect that the respondent No. 6 had submitted any false evidence or had fabricated any document. The only reason for coming to a decision that the daughter of the respondent No. 6 did not belong to the ST community of Assam by the Scrutiny Committee, was due to the finding that education and amenities were available and accessible to her, which was not available and accessible to the members of the community to which the respondent No. 6 belonged. This finding by the Scrutiny Committee, in no way suggests or proves that the respondent No. 6 had played a fraud or submitted false evidence or had fabricated documents, for the purpose of issuance of an ST (P) certificate in favour of her daughter by the Deputy Commissioner, Kamrup (Metro).”
It cannot be glossed over that the Bench then points out in para 28 that, “Though the petitioner’s counsel has submitted that a writ of mandamus can lie, only if it is shown that the authorities were required to perform a legal duty, this Court is of the view that in terms of the various judgments of the Apex Court mentioned in the foregoing paragraphs, a writ of mandamus can only be issued in case of violation/ infringement of any of the petitioner’s right and/or enforcement of some existing enforceable right of the petitioner, and not due to some expectation of the petitioner.
In the case of Official Liquidator Vs. Dayanand & Others, reported in (2008) 10 SCC 1, the Apex Court has held at paragraph 105, that the existence of legitimate expectation may have a number of different consequences, and one of such consequences is that the authority ought not to act to defeat the ‘legitimate expectation’ without some overriding reason of public policy to justify its doing so. It has also relied upon the decision of the House of Lords in Council of Civil Service Unions Vs. Minister for Civil Service, reported in 1985 AC 374, wherein it has been held that an aggrieved person was entitled to judicial review, if he could show that a decision of the public authority affected him of some benefit or advantage, which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment on such reasons. Thus, in terms of the Judgment of the Apex Court in Official Liquidator (Supra), it is clear that the petitioner would have to show that he had been permitted to enjoy some benefit of advantage in the past, which was taken away without hearing him. The same is however not the issue in the present case.”
Most significantly, the Bench then minces just no words to state most upfront in para 29 that, “It should also be noted that this is not a perfect world. Many things which the State and it’s instrumentalities are expected to perform as a legal duty and have to in terms of statutes are not being done. If persons are allowed to file writ petitions, praying for a writ of mandamus in respect of alleged breach of legal statutory duties, without having any corresponding enforceable legal right on the part of the applicant, the Courts would be a chock-a-block with cases, having nothing to do with the applicants. The same could/would lead to busybodies filing a deluge of writ petitions, which would not be in consonance with the judgments of the Apex Court in Director of Settlements, A.P. & Others Vs. M.R. Apparao & Other (supra) and Ayaaubkhan Noorkhan Pathan (supra).”
As a corollary, the Bench then holds in para 30 that, “As can be seen from the discussion made in the fore-going paragraphs, the provisions of the 1989 Act have not been added to the All Woman Police Station Case No. 05/2020 and as such, the rigors of the provision of the 1989 Act were not felt by the petitioner. Further, the ST (P) certificate issued to the daughter of the respondent No. 6 was cancelled. This Court is of the view that as no legal or fundamental right of the petitioner has been violated and as there is no existing enforceable right of the petitioner, a writ of mandamus cannot be issued to the State respondents, for initiating any criminal or departmental proceeding against the petitioner.”
Finally, the Bench then concludes by holding in para 31 that, “In view of the reasons stated above, this Court does not find any ground to exercise it’s discretion in this case. The writ petition is accordingly dismissed.”
All told, we thus see that the Gauhati High Court has made it pretty clear that this is not a perfect world. It unambiguously stated that the State’s statutory duties can’t be enforced not having a corresponding enforceable legal right. So definitely there should be no cloud of any doubt left lingering on this.