Holding

The Court recalled the directions for exemplary damages and CBI investigation as erroneous, holding that the minister's actions did not constitute an act of the State, nor did they give rise to the tort of misfeasance in public office.

Summary

The Supreme Court reviewed a petition challenging its earlier orders that directed the Minister of State for Petroleum, Capt. Satish Sharma, to pay Rs.50 lakh as exemplary damages to the Government and to undergo CBI investigation for alleged criminal breach of trust. The Court held that the earlier directions were erroneous, recalling both the exemplary damages award and the CBI investigation order. It clarified that the minister's allotment of petrol pumps was not an act of the State, that the tort of misfeasance in public office was not established due to lack of an identifiable plaintiff, and that the Court has plenary power under Articles 32 and 226 to correct its own mistakes. Consequently, the review petition was allowed and the challenged orders were set aside.

Issues considered

The validity of directing a minister to pay exemplary damages to the Government under Article 32
Whether the minister's discretionary allotment of petrol pumps constitutes an act of the State immune from civil or criminal liability
The existence of the tort of misfeasance in public office in the present facts
The propriety of directing the CBI to investigate alleged criminal breach of trust without a prima facie case
The power of the Supreme Court to rectify its own erroneous orders

Legislation cited

Constitution of Indias. Article 142, s. Article 226, s. Article 300, s. Article 32, s. Article 361, s. Article 75(3), s. Article 77(1), s. Article 77(2), s. Article 77(3)
Indian Penal Code, 1860s. Section 405, s. Section 409

Subjects

exemplary damagesmisfeasance in public officeministerial discretiondiscretionary quotaArticle 32judicial reviewsovereign immunityCBI investigationpublic lawadministrative law

Judgment

;-

COMMON CAUSE, A REGISTERED SOCIETY A
v.
UNION OF INDIA & ORS.

AUGUST 3, 1999

[S. SAGHIRAHMAD, K. VENKATAS1WAMI AND B
S. RAJENDRA BABU, JJ.]

Administrative Law :

Public Functionary-Minister-Allotment of petrol pumps out of C
discretionary quota-Cancellation by Supreme Court on the ground of
arbitrary exercise ofpower-Imposition of exemplary damages of rupees fifty
lakhs on the Minister-Held not valid-Direction to CB.I to investigate
offence of criminal breach of trust or any other offence-Held not legal.

Constitution of India, 1950 : D
Articles 226 and 32-Public Law-Private Law-Remedies-Violation
of fundamental rights-Remedy available in public law-Also available in
cases of torts.

Judicial Review-Minister-Allotment of petrol pumps out of E
discretionary quota-Question of abuse C?f discretion-Matter not considered
in the House-Held judicial review of such a question was permissible.

Supreme Court-Power to rectify its own mistake .

Article 21-Right to life-Right to enjoy life without fetters-No general F
direction can be issued to CB.I or to police whether a man has committed

-- any offence or is living as a law abiding citizen.

Article 75(3)--Cabinet-"Col/ective Responsibi/ity"-Meaning of

Article 77(3)-Government of Indi~onduct of business-A/location O
of business to Ministers-Object is smooth and better administration-A
Minister does not become a trustee.

Articles 77(1)(2) and 360-President-Judicial immunity of-Immunity
available to President cannot be extended to the orders passed in the name
of the President under Article 77(1) or 77(2).
1279 H
1280 SUPREME COURT REPORTS [1999] 3 S.C.R.

A Articles 142-Directions passed by Supreme Court-Held cannot ignore
substantive provisions of law much less the constitutional rights available
to a person.

Article 300-Act of State--What is-Minisr'.r--Allotment of petrol
pumps-discretionary quota-Held exercise of such discretionary power is
B not an act of State.

Tort-Damages-Exemplary damages-Relevant considerations for
determination of-Claimant ofdamages must be a victim-Award ofexemplary
damages against a Minister for arbitrary .allotment of petrol pumps under
C discretionary quota held not sustainable.

Misfeasance in public office-Essential requirements of-Plaintiff who
suffered must be identifiable.

Indian Penal Code, 1860 :

D Sections 405 and 409--Criminal Breach of trust-Ingredients of
offence-Entrustment ofproperty-Minister-Exercise of discretionary power
to allot petrol pumps-Held mere exercise of "power to allot" cannot be
treated as property.

E Doctrine of public trust-Origin of--Applicability in the context of
frxing criminal liabiliiy.

Words and Phrases:

'Tort'-' Damages '-Meaning of

F The Minister of State for Petroleum and Natural Gas in the Central
Government, Captain Satish Sharma, made allotment of 15 retail petrol
outlets out of his discretionary quota. By its decision entitled Common
Cause, a Regd Society v. Union ofIndia, [1996] 6 S.C.C. 530, the Supreme
Court cancelled the allotments and issued a show cause notice to the Minister
G (i) As to why a direction be not issued to the police to register a case and
initiate prosecution against him for criminal breach of trust or any other
offence under law, and (ii) Further why he should not be made liable to pay
damages for his malajide action in allotting the fifteen petrol pumps. The
Minister replied to the show cause notice and by its judgment viz. Common
-
Cause, a Regd. Society v. Union of India, [1996] 6 SCC 593, this Court
H held that (i) Actions of the Minister were wholly arbitrary and mqlajide; (ii)
COMMON CAUSE, A REGTD. SOCIETY v. U.O.I. 1281
The Minister should pay a sum of rupees fifty lakhs as exemplary damages A
to the Govt. exchequer. This Court also held that a Minister holds a trust
on behalf of the people and he has to deal with the people's property in a fair
and. just manner. A direction was also issued to the Central Bureau of
Investigation to-conduct investigation against the Minister for (a) the offence
of criminal breach of trust; (b) or "any other offence." This Review Petition
has been filed against the aforesaid two judgments. B

On behalf of the petitioner it was contended that:

(1) The petitioner being a Minister of state in the Union Cabinet
was a part of the Govt. and his act being the act of president,
the same could not be challenged before a Court of Law; c
(2) The petitioner having acted as Minister of State, his act would
be treated to be act of entire Cabinet which, on the Principal
of "Collective Responsibility" would be treated to have endorsed
the act of the petitioner in making the allotments of patrol
outlets and since the cabinet is answerable to Parliament, where D
allotments were not questioned, the same cannot be questioned
before the Court;
(3) In public law proceedings under Article 32, compensation and
damages are awardable only against the State for violation of
fundamental rights of a citizen. But where right to life is not E
involved the petitioner would have to file a suit for damages in
the Civil court under private law jurisdiction and cannot take
recourse to proceeding under public law under Article 226 or
32;
(4) The petitioner being a Minister of state in the Central Cabinet F
the direction to him to pay Rs. 50 lakhs as exemplary damages
to the state is an order to the Govt. to pay to itself exemplary
damages which is not permissible under any system of law;

(5) Allotment of petrol outlets by the petitioner would, in law, be

- treated as "act of State" or "sovereign Act" and therefore, it
would be immune from civil or criminal action including action
in tort;
G

(6) It cannot be said that the offence of criminal breach of trust
under section 305 IPC has bet:n made out because mere exercise
of power to allot petrol pumps under discretionary quota cannot H
1282 SUPREME COURT REPORTS (1999] 3 S.C.R.

·A be treated as property over which dominion may be exercised;
(7) The ingredients of the tort of misfeasance in public office were
not made out as the persons who suffered injury on account of
tort of misfeasance are neither identifiable nor have they been
specified:
B (8) The amount of Rs. 50 lakhs has been fixed in an arbitrary
manner withoutthere being any rational basis for arriving at
that figure; and
(9) Neither could the court award exemplary damage against the
petitioner nor could it order any C.B.I. investigation as the
·C petitioner in making the allotment of petrol outlets had not
committed any offence, much less an offence of breach of trust.
Allowing the Review Application, this Court

HELD : 1. The powers of this court under Article 32 and that of the
D High Court under Article 226 are plenary powers and are not fettered by
any legal constraints. If the court, in exercise of these powers has itself.
committed a mistake, it has the plenary power to correct its own mistake.
[1372-G-H]

2. In the judgment under review, there are errors apparent no the face
E of the record, which have resulted in serious miscarriage of justice,
Consequently, the direction for payment of Rs. 50 !akhs as eJ<emplary damages
as also the direction for a case being registered by the C.B.I. against the
petitioner for criminal breach of trust and investigation by them into that
offence and the. further direction to investigate whether petitioner has
committed any other offence are recalled. [1373-G-H; 1374-A]
F 3. The immunity available to the President under Article 361 of the
Constitution cannot be extended to the orders passed in the name of the
President under Article 77(1) or Article 77(2) of the constitution.[1309-A]

4. Though an order is issued in the name of the president it does not
G become an order of the President passed by him personally, but remains,
basically and essentially, the order of the Minister on whose advice the
President had acted and passed that order. Moreove~-, as required by Article
77(1), all executive actions of the Government of India have to be expressed
in the name of the President; but this would not make that order an order
passed by the president personally. That being so, the order carries with it
H no immunity. Being essentially an order of the Government of India, passed
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. 1283
in exercise of its Executive functions, it would be amenable to judicial A
scrutiny and, therefore, can constitute a valid basis for exercise of power
of judicial review by this Court. The authenticity, validity and correctness of
such an order can be examined by this Court in spite of the order having
been expressed in the name of President. [1308-F-H; 1309-A]

- 5. The functions of the Government are carried out in the name of the
President by Ministers appointed by him on the advice of the Prime Minister.
The Executive consists of :
B

(a) Prime Minister and Ministers who are members of the Cabinet; (b)
Ministers who are not of Cabinet rank; and (c) The Civil Service.
c
Since the functions of the Government are carried on by the Executive
in the name of the President on the advice of Ministers, they (Ministers)
alone are answerable to the Parliament. The Civil Service as such has no
constitutional personality or responsibility separate from the duly constituted
Government. [1305-D-F] D
Samsher Singh & Anr. v. State of Punjab, [1975) 1 SCR 814 =AIR
(1974) SC 2192; Rai Sahib Ram Jawaya Kapur v. State of Punjab, [1955]
2 SCR 225=AIR (1955) SC 549; State of MP. v. Thakur Bharat Singh,
[1967) 2 SCR 454=AIR (1967) SC 1170; Naraindas lndurkhya v. State
of MP., [1974] 3 SCR 624=[1974] 4 SCC 788=AIR (1974) SC 1232; E
Jayantilal Amratlal Shodhan v. F.N. Rana, [1964] 5 SCR 294=AIR (1964)
SC 648; Bishambhar Dayal Chandra Mohan v. State of UP., [1982] 1 SCC
39=[1982] 1 SCR 1137=AIR (1982) SC 33 and B.K. Sardari Lal v. Union
of India, [1970] 1 SCC 411=[1971] 3 SCR 46l=AIR (1971) SC 1547,
referred to.
F
Common Cause, a Registered Society v. Union of India & Ors., [1996]
6 SCC 530 and Common Cause, a Registered Society v. Union of India &
Ors., [1996] 6 SCC 593, referred to.

H.M Seervai, Constitutional Law of India, Silver Jubilee Edition, G
-
.,... ; Fourth Edition, page 2037, referred to.

6. No doubt it was open to the House of the People (Lok Sabha) to take
up the issue of the abuse of discretionary quota by the petitioner in his
capacity as the Minister of State for Petroleum, and his conduct could have
been debated and scrutinised on the floor of the House, but the mere fact that H
1284 SUPREME COURT REPORTS [1999] 3 S.C.R.

A this was not done would not mean that the allotments of petroleum outlets
by him were immune from judicial scrutiny by this Court under Article 32
of the Constitution. Therefore, even if the matter was not raised on the floor
of the Lok Sabha, it would be amenable to the jurisdiction of this Court under
Article 32 of the Constitution. (1313-A-B)

B 7. Our Constitution provides for a parliamentary form of Government.
The concept of "collective responsibility" is essentially a political concept.
The country is governed by the party in power on the basis of the policies
adopted and laid down by it in the Cabinet meeting. "collective Responsibility"
has two meaning : The first meaning which can legitimately be ascribed to
C it is that all members of a Government are unanimous in support of its
policies and would exhibit that unanimity on public occasions although while
formulating the policies, they might have expressed a different view in the
meeting of the Cabinet. The other meaning is that Ministers, who had an
opportunity to speak for or against the policies in the Cabinet are thereby
personally and morally responsible for its success and failure.
D (1309-G; 1310-E-G]

8. In spite of the fact that the Council of Ministers is coilectively
responsible to the House of the People, there may be an occasion where the
conduct of a Minister may be censured if he or his subordinates have
blundered and have acted contrary to law. Even in England, all Ministers and
E servants of the crown are accountable to the courts for the legality of their
actions, and may be held civilly and criminally liable, in their individual
capacities for tortious or criminal acts. This liability may be enforced either
by means of ordinary criminal or civil proceedings or by means of
impeachment, a remedy which is probably obsolete. They are also subject to
F the judicial review jurisdiction of the Courts. (1312-G; 1313-A-C-D)
Halsbury's laws of England- Fourth Edition (Re-issue), Volume 8(2)
para 422, referred to.
J. Harvey and l. Bather, British Constitution & Politics 5th Edition,
John P. Machintosh, The British Cabinet 1962 Edn., referred to.
G 9. Under Article 226 of the Constitution the High Court has been given
the power and jurisdiction not only to grant relief for the enforcement of
-
Fundamental rights but also for "any other purpose" which would include
the enforcement of public duties by public bodies. so also, the Supreme Court
under Article 32 has the jurisdiction to issue prerogative writs for the
H enforcement of fundamental Rights guaranteed to a citizen under the
.. COMMON CAUSE, A REGTD. SOCIETY v. U.0.1.

Constitution. [1314-A-B]
1285

10. Essentially, under public law, it is the dispute between the citizen
A

or a group of citizens on the one hand and the State or other public bodies
on the other, which is resolved. This is done to maintain the rule of law and
to prevent the State or the public bodies from acting in an arbitrary manner
or in violation of that rule. The exercise of constitutional powers by the High B
Court and the supreme' Court under Articles 226 and 32 has been categorised
as power of"judicial review". Every executive or administrative action of the
State or other statutory or public bodies is open to judicial scrutiny and the
High Court or the supreme Court can, in exercise of the power of judicial
review under the Constitution, quash the executive action or decision which
is contrary to law or is violative of Fundamental Rights guaranteed by the C
Constitution. With the expanding horizon of Article 14 read with other
Articles dealing with Fundamental Rights, every executive action of the
Government or those which can be legally treated as "Authority" within the
meaning of Article 12, if arbitrary, unreasonable or contrary to law, is now
amenable to the writ jurisdiction of this Court under Article 32 or the High D
courts under Article 226 and can be validly scrutinised on the touch-stone
of the Constitutional mandates. (1314-C-F]
11. In a broad sense, therefore, it may be said that those branches of
law which deal with rights/duties and privileges of the public authorities and
their relationship with individual citizens of the State, pertain to "public E
law", such as Constitutional and Administrative Law, in contra-distinction
to "private law" fields which are those branches of law which deal with the
rights and liabilities of private individuals in relation to one another.
[1314-G]
Life Insurance Corporation of India v. Escorts Limited & Ors., [1985] F
Supp. 3 SCR 909 = (1986] 1 SCC 264=AIR (1986) SC 1370, referred to.

12. Public Law field, since its emergency is ever expanding in
operational dimension. Its expanse covers even contractual matters.
(1315-CJ
Union of India v. A.L. Rallia Ram, (1964) 3 SCR 164=AIR (1963) G
1685; Mualamchand v. State of Madhya Pradesh, [1968] 3 SCR 214=AIR
(1968) SC 1218; State of West Bengal v. B.K. Monda/ & Sons, [1962) Supp.
1 SCR 876=AIR (1962) SC 779 and New Marine Coal Company Ltd Y.
Union of India, (1964] 2 SCR 859=AIR (1964) SC 152, referred to.
13. Government decisions regarding award of contracts are also open H
1286 SUPREME COURT REPORTS [l 999) 3 S.C.R.

A to judicial review and if the decision making process is shown to be vitiated
by arbitrariness, unfairness, illegality and irrationally, then the Court can
strike down the decision making process as also the award of contract based
on such decision. [1315-E)

Tata Cellular v. Union of India, (1994) 6 SCC 65l=AIR (1996) SC
B 11; Radhakrishna Agarwal v. State of Bihar, [1977] 3 SCC 457=(1977] 3
SCR 249~AIR (1977) SC 1496; Gujarat State Financial Corpn. v. Lotus
Hotels Pvt. Ltd., [1983) 3 SCC 379=AIR (1983) SC 848; Assistant Excise
Commr. v. Issac Peter, [1994] 4 SCC 104=[1994) 2 SCR 67; Mahabir Auto
Stores v. Indian Oil Corpn., (1990) 1 SCR 818=(1990] 3 SCC 752=Affi
(1990) SC 1031; E.P. Royappa v. State of Tamil Nadu, [1974) 2 SCR
C 348=[1974) 4 SCC 3=AIR (1974) SC 555; Menka Gandhi v. Union ofIndia,
[1978) 1 SCC 248=[1978) 2 SCR 62l=AIR (1978) SC 597; Ajay Hasia v.
Khalid Mujib Sehravardi, [1981] 1 SCC 722=[1981] 1 SCC 722=(1981] 2
SCR 79=AIR (1981) SC 487; R.D. Shetty v. The International Airport
Authority of India, [1979] 3 SCR 1014=[1979] 3 SCC 489=AIR (1979) SC
D 1628 and Dwarka Das Marfatia & Sons v. Board of Trustees of the Port of
Bombay, [1989) 3 SCR 293=[1989] 2 SCR 751= AIR (1989) SC 1642,
referred to.

14. Public law remedies have also been extended by this Court to the
realm of tort. In exercis~ of jurisdiction under Article 32 of the Constitution,
E this Court has awarded compensation to the petitioners who suffered personal
injuries at the hands of the officers of the Government and the causing of
injuries which amounted to tortious act was compensated by this Court.
[1316-C-D]

Rudul Sah v. State ofBihar, [1983] 3 SCR 508=[1983] 4 SCC 14l=AIR
F (1983) SC 1086; Bhim Singh v. State of Jammu & Kashmir, [1985] 4 SCC
677=AIR (1986) SC 494; People's Union for Democratic Rights v. State of
Bihar, (1987] 1 SCR 631=[1987)=SCC 265 =AIR(l987) SC 355; People's
Union/or Democratic Rights Through_Its Secy. v. Police Commr. Delhi Police
Headquarters, [1989] 4 SCC 730=[1989] 1 Scale 599; SAHELI, a Women's
G Resources Centre v. Commr. of Police, Delhi, [1990] 1 SCC 422=[198~]
Supp. SCR 488=AIR (1990) SC 513; Arvinder Singh Bagga v. State of U.P.,
[1994] 6 SCC 865=AIR (1995) SC 117; lnder Singh v. State of Punjab,
[1995] 3 SCC 702=AIR (1995) SC 1949; D.K. Basu v. State of West Bengal,
[1997] 1 SCC 416=AIR (1997) SC 610; Mrs. Pritam Kaur Baryar v. State
of Punjab, [1996] 7 Scale (SP) 11 and Paramjit Kaur v. State of Punjab.
H [1996] 8 Scale (SP) 6; Nilabati Behara v. State of Orissa, [1993] 2 SCC
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. 1287
746=[1993] 2 SCR 58l=AIR (1993) SC (1960) State of M.P. v. Shyam Sunder A
, Trivedi [1995) 4 SCC 262 = [1995] 3 Scale 343; People's Union for Civil
Liberties v. Union of India, (1997) 3 SCC 433 = AIR (1997) SC 1203;
Kaushalya v. State of Punjab, (1996) 7 Scale (SP) 13; Supreme Court Legal
Aid Committee v. State of Bihar, [1991) 3 SCC 482; Dr. Jacob George v. State
of Kera/a, (1994) 3 SCC 430= (1994) 2 Scale 563; Paschim Banga Khet B
Mazdoor Samity v. State of West Bengal & Ors., [1996) 4 SCC 37=AIR
(1996) SC 2426; Mrs. Manju Bhatia v. N.D. MC., [199716SCC370= AIR
(1998) SC 223=(1997] 4 Scale 350 and N. Nagendra Rao & Co. v. State of
Andhra Pradesh, [1994) 6 SCC 205 =AIR (1994) SC 2663, referred to.
P. Rathinam v. Union of India, [1989) Supp. 2 SCC 716 and In Re :
Death of Sawinder Singh Grower, [1995) Supp. 4 SCC 450 = JT (1992) 6 C
SC 271=(1992) 3 SCC 702=AIR (1995) SC 1949, held inapplicable.
15. The Court can grant damages under Article 32 to the petitioner
where Right to life under Article 21 of the Constitution is found to have been
violated. The proposition that where Right to life is not involved, the petitioner
would have to file a suit for damages in the Civil Court under private law D
jurisdiction and cannot take recourse to proceedings under public law either
in the High Court under Article 226 or in this Court under Article 32 is
not acceptable. The <:ontention that interim compensation may be granted by
the Court under Article 32 as immediate relief and the whole matter may
be referred to the Civil Court for determination of the amount of compensation E
or damages payable to the petitioner or the petitioner may be directed to
approach the Civil Court is not acceptable. [1319-F-H; 1320-B]
16. Where public functionaries are involved and matter relates to the
violation of Fundamental Rights or the enforcement of public duties etc., the
remedy would lie, at the option of the petitioner, under the public law p
notwithstanding that damages are also claimed in those proceedings.
(1321-D-E]

M.C. Mehta v. U.0.1. & Ors, (19971 1 SCC 395, referred to.

17. In England, the position is not much different. There is not much G
, of a difference between the powers of the Court exercised here in this
country under Article 32 or 226 and those exercised in England for judicial
review. Public law remedies are available in both the countries and the courts
can award damages against public authorities to compensate for the loss or
injury caused to the plaintiff/petitioner, provided the case involves, in this
country, the violation of fundamental rights by the Government or other H
1288 SUPREME COURT REPORTS [1999] 3 S.C.R.

· A public authorities or that their action was wholly arbitrary or oppressive iii· ...
yiolation of Article 14 or in breach of statutory duty and is not a purely
private matter directed against a private individual. [1321-G; 1323-F-H)
R. V. Horsham Justice, (1982) QB 762= (1982) 2 All ERs 269; Ridge
v. Baldwin, AC 40= (1963) 2 All ERs 66 and R. V. Epping & Harlow General
B Commissioners, (1983) 3 All ERs 257, referred to.

18. The contention that allotment of petrol outlets by the petitioner
would, in law, be treated as "act of the State" or "sovereign act" and
therefore it would be immune from civil or criminal action including action
in tort is liable to be rejected. The allotment of petrol outlets by the petitioner
C cannot be treated as "act of the State" and the rule of immunity cannot be
accepted. [1323-H; 1324-A; 1331-D]
19. The Crown in England does not enjoy absolute immunity and may
be held vicariously liable for the tortious acts of his officers and servants.
The maxim that the 'King can do no wrong' on the basis of which Common
D Law rule that "Crown was not answerable for the torts committed by its
servants", was generated, has not been applied here in this Country.
[1325-D-E]

Rattan Lal, Law of Torts, 23rd Edition, referred to.
The First Report of the Law Commission of India, (1956), referred to.
E
The Peninsular & Oriental Steamship Navigation Co. v. The Secretary
of State for India, 1868-69 Bombay H .C. Reports Vol. V Appendix-A, P.1;
Nobin Chunder Dey v. Secretary of State for India, ILR (1875-76) 1Cal.11;
Secretary of State for Indian Council v. Hari Bhanji & Anr., ILR (1882) 5
Mad. 273; P. V. Rao v. Khushaldas S. Advani, (1949) 51 Bombay Law Reporter
F 342=AIR [1949] Bombay 277; Province of Bombay v. K.S. Advani, [1950)
SCR 62l=AIR (1950) SC 222; State of Rajasthan v. Mst. Vidhyawati =AIR
(1962) SC 933; Kasturi Lal Ralia Ram Jain v. State of U.P., AIR (1965) SC
1039=[1965] 1SCR375; State of Gujarat v. Memon Mahomed Haji Hasan,
AIR (1967) SC 1885; Smt. Basava Kom Dyamogouda Patil v. State ofMysore,
G AIR (1977) SC 1749; Sebastin M Hongray v. Union of India, (1984) 3 SCC
82= AIR (1984) SC 1026; N.Nagendra Rao & Co. v. State ofA.P., AIR (1994)
i
SC 2663; = (1994] 6 SCC 205; Shayam Sunder v. State of Rajasthan, (19.74)
1 SCC 690 =AIR (1974) SC 890; State of Bombay v. Hospital Mazdoor
Sabha, AIR (1960) SC 610 and Corporation of the City of Nagpur v. ·
Employees Fu/sing Mistry N.H. Majumdar, AIR (1960) SC 575=(1960) 2
H SCR 942, referred to.
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. 1289
Maharaj v. Attorney General of Trinidad & Tohago, (No.2), (1978) 2 A
All Er 670 and Richard Coomber v. The Justices ofthe Country Berks, (1883-
84) 9 AC 61, referred to.
20. 'Tort' has been derived from the Latin word "tortus" which means
twisted or "crooked". In its original and most general sense, "tort" is a
wrong. Apart from tort which may be committed by a private individual, the B
officers of the Govt. would also be liable in damages for their wrongful acts
provided the act does not fall within the purview of"act of the State". So also,
the administrative bodies or authorities, which deal in administrative matters
and take decisions specially for the implementation of the Govt. policies, have
to act fairly and objectively and may in some cases also be required to follow
the principles of natural justice. It is the basic principle of Administrative C
law that ifthe authorities are conferred certain power, then that power must
be exercised in good faith and the administrative decision must be made after
taking into account all matters relevant for the exercise of that power. The
authority must not be influenced by irrelevant matters and if the order is
likely to prejudicially affect the rights, or, even the reasonable expectation D
of a person, the principles of natural justice must be followed and the person
likely to be affected must be given an opportunity of hearing. Thus, the
decision of an administrative authority can be challenged on the grounds,
inter alia, of illegality, irrationality and procedural impropriety.
(1332-C-H; 1333-A-C]
Jowitt's Dictionary of English Law; Winfield: on Torts, referred to. E
21. Mere allotment of Petrol outlets would not constitute "Misfeasance"
unless other essential elements were present. Having regard to the definition
of tort of misfeasance in public office and having regard to the ingredients
of that tort, it is obvious that there has to be an identifiable plaintiff or
claimant whose iµterest was damaged by the public officer maliciously or F
with knowledge that the impugned action was likely to injure the interest
of that person. It is in favour of that specific identifiable plaintiff or claimant
that the relief could have been granted and damages awarded to him as the
whole gamut of the Law of Tort is compensatory in nature and damages are.
awarded to compensate the losses caused on account of violation of the G
interest of one person by another. In other words, obtaining compensation for
a tortuously inflicted loss is generally perceived as the aim of the law of tort
by the plaintiff. Judgment in favour of the plaintiff can be given and the loss
suffered by him can be redressed only when a finding of a breach of an
obligation by the tort-feasor is recorded. It is the compensatory function of
tort which is invoked by the plaintiff in a Court and unless there is an H
1290 SUPREME COURT REPORTS (1999] 3 S.C.R.

A identifiable plaintiff, there cannot be any order for compensation or damages ,
to redress the loss caused to that plaintiff. [1354-D-G]
Sir William Wade, Administrative Law, 7th Edition; Halsbury's Laws of
England, Vol. /(/) 4th Edn. (Re-issue) (para 203;) De Smith Judicial Review
of Administrative Action, referred to.
B 22. The whole proceedings were initiated on the basis of a press report
which -was brought to the notice of the Court by Director, Common Cause
whose writ petition was already pending and it was .on that basis in that
. pending writ petition that the Court took cognizance of. the matter. The
allotments were made by the petitioner in his capacity as Minister of State
C for Petroleum and Natural Gas as and when an application was made by
separate individual persons. There was none to compete with that person.
The individual concerned would approach the petitioner and the petitioner,
perhaps, on being satisfied with the contents of the application, as also the
need for a petrol outlet in the area, made the allotment. [1353-C-E]

D Had there been any other applicant for the same petrol outlet for which
an application was made to the Minister, the question that he deliberately
made the allotment in favour of one so as to injure the other person would
then haye positively arise. So far as malice is concerned, while actual malice,
if proved, would render the defendant's action both ultra vires and tortious,
E it would not be necessary to establish actual malice in every claim for
misfeasance in public office. The petitioner cannot be said to have made the
allotment in favour of one, out of malice towards the other as there was none
else to contest or compete with the claim of the person who made the
application for allotment. Nor could it be said that the petitioner made the
allotment of petrol outlet in favour of the applicant with the knowledge that
F such allotment was likely to injure the interest of any other ·person.
[1353-C-F)

23. The petitioner before the Court was "Common Cause". It was a
. regiztered society. It was not one of the applicants for allotment of petrol
G outlet. Had the "Common Cause" approached the Civil Court for damages
on account of tort of misfeasance in public office, its suit would have been
disinissed on the ground that it was not one of the applicant for a petrol ".
outlet; its own interest was not injured in any way nor had the petitioner
made ·allotment in favour of one of the applicant maliciously or with the
knowledge that allotment would ultimately harm the "Common Cause." How
H · could then a finding of commission of misfeasance ·in public office by the
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. 1291

petitioner be recorded in proceedings under Article 32 and that too, at the A
instance of "Common Cause" on the basis of a Press report? "Common
Cause" not being an applicant for allotment of a petrol outlet could not have
,.-, obtained a finding in the Civil suit that the petitioner had committed Tort of
Misfeasance in public Office. [1353-G-H; 1354-A-C)

24. It cannot be ignored that the allotments made by the petitioner B
under the discretionary quota were challenged in this Court but the Court
did not interfere with those allotments and instead settled the guidelines for
future allotments. It is not alleged nor has it been found that any allotment

- was made in violation of the guidelines. It cannot also be ignored that the
petitioner is not alleged to have interfered with any allotments made through
the Oil Selection Boards or the process of section carried out by the Boards.
C
(1354-G; 1355-A-B]

25. It is true that there are millions of poor, unemployed educated or
uneducated young men, who might have deserved preferential treatment, but
all of them had not approached the petitioner nor the petitioner was expected D
to know all of them personally. I( an advertisement was to be issued and
applications were to be invited for allotment to petrol outlet on the basis of
auction, it would still not have been possible for the millions of poor or ,
unemployed persons to have applied for allotment or to participate in the bid.
Auction is usually held to augment the revenue. Physically handicapped,
poor, unemployed, illiterate youth cannot be expected to participate in the E

- auction and offer their bids. Moreover, this would be contrary to the concept
of discretionary quota, the main purpose of which is to provide immediate
relief to the most needy. Even the guidelines settled by this Court do not
provide for allotment being made by public auction. [1355-G-H; 1356-A-B]

26. The conduct of the petitioner in making allotments of petrol outlets F
was atrocious, specially those made in favour of the Members, Oil Selection
Board or their son, etc., and reflects a wanton exercise of power by the
. -I petitioner. This Court has already used judicial viturperatives in respect of
such allotments and there is no need to strain the vocabulary any further
in that regard. Suffice it to say that though the conduct of the petitioner was G
wholly unjustified yet it falls short of "misfeasance in public office" which
is a specific tort and the ingredients of that tort are not wholly met in the
case. That being so, there is no occasion to award exemplary damages.
[1356-C-D]

Northern Territory v. Menga/, (69) The Australian Law Journal 527; H
1292 SUPREME COURT REPORTS [1999] 3 S.C.R.

A Dunlop v. Wool/ahra Municipal Council, (1981) 1 All ER 1202 (PC); Bourgoin ·
SA & Ors. v. Ministry ofAgriculture Fisheries & Food, (1985) 3 All ER 585
(CA); Jones v. Swansea City Council, (1989) 3 All ER 162 CA; Jones v.
Swanses City Council, (1990) 3 All ER 737 (HL); Three Rivers District
Council & Ors., Bank of England (No.3), (1996) 3 All ER 558; Bennett v.
B Commissioner ofPolice ofthe Metropolis & Ors., (1995) 2 All ER 1 (at pages
13 and 14); Cassell & Co. Ltd v. Broome & Anr., (1972) 1 All ER 801;
Rookes v. Barnard, (1964) 1 All ER 367 and Ashby v. White, (1703) 2 LD
Raym 938, referred to.
Ashok Kumar David v. MA.MM Abdul Codor, (1963) 1 WLR 834,
referred to.
c Lucknow Development Authority v. MK. Gupta, (1994) 1 SCC 243
and Ashok K. Mittal v. Maruti Udyog Ltd. & Anr., [1986) 1 SCR 585,
referred to.
27. In this case exemplary damages were awarded. In spite of the
D finding that the petitioner had not committed tort of misfeasance in' public
office, the question relating to "Exemplary Damages" has to be considered
on its own merit. [1356-D]
28. "Damages" are the pecuniary compensation, obtainable by success
in an action, for a wrong which is either a tort or a breach of contract, the
E compensation being in the form of a lump sum which is awarded
unconditionally. The object of an award of damages is to give the plaintiff
compensation for damage, loss or injury he has suffered. The elements of
damage recognised by law are divisible into two main groups : pecuniary and
non-pecuniary. While the pecuniary loss is capable of being arithmetically
worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss
F is compensated in terms of money, but as a substitute, is generally more
important than money: it is the best that a court can do. (1356-E-G)
In Re The Medianna, [1900) AC 1300; Fletcher v. Autocar and
Transporters, (1968) 2 Q.B. 322 and Parry v. Cleaner, (1970) AC 1; Broome
v. Cassell & Co., (1971) 2 All ER 187, referred to.
G Halsbury's Laws ofEngland (4th Edition), Vol. 12, Para, 1102, referred
to.
29. In a suit for damages under the Law of Tort, the court awards
pecuniary compensation after it is proved that the defendant committed a
wrongful act. In such cases, the court usually has to decide three questions:
H (1) Was the damage alleged caused by the defendant's wrongful act? (2) Was
COMMON CAUSE, A REGTD. SOCIETY v. U.O.l. 1293

- it remote? and (3) What is the monetary compensation for the damage?
These elements imply that there has to be always a plaintiff who had suffered
A

loss on account of wrongful act of the defendant If the damage caused.to the
plaintiff is directly referrable to the wrongful act of the defendant, the
plaintiff becomes entitled to damages. How the damages would be calculated,
what factors would be taken into consideration and what arithmetical process
would be adopted would depend upon the facts and circumstances of each
B
case. [1357-C-E]
30. The damages which can be awarded in an action based on Tort may
be Contemptuous, Nominal, Ordinary or, for that matter, Exemplary. In the
instant case, court is concerned with the "Exemplary Damages". The primary
object of award of damages is to compensate the plaintiff for the harm done c
to him, while the secondary object is to punish the defendant for his conduct
in inflicting the harm. The secondary object can also achieved in awarding,
in addition to normal compensatory damages, damages which are variously
called as exemplary damages, punitive damages vindictive damages or
retributory damages. They are awarded whenever the defendant's conduct is D
found to be sufficiently outrageous to merit punishment for example, where
the conduct discloses malice, cruelty, insolence or the like. In awarding
punitive or exemplary damages, the emphasis is not on the plaintiff and the
injury caused to him, but on the defendant and his conduct.
(1357-F-H; 1358-A]
E
31. In an action for tort where the plaintiff is found entitled to damages,
the matter should not be stretched too far to punish the defendants by
awarding exemplary damages except when their conduct, specially those of
the Govt. and its officers, is found to be oppressive, obnoxious and arbitrary
and is, sometimes, coupled with malice. [1361-G]
F
32. Executive, under the C~mstitution, consists of Prime Minister,
Cabinet Ministers, Ministers of State and Civil Services comprising of high
administrative officers on the top down to the clerical level. They have as
important a role to play in the governance of the country as the judiciary or
'
legislature. The Executive, in running the administration of the country,
G
should not be cowed down and should be allowed to have full confidence in
-,
its own exisjence so that its decision-making process is not, in any way
affected. They must feel independent and keep themselves in an excellent
frame of mind so that the administrative files are cleared in time and the
officers dealing with those files are not hesitant even in taking bold decisions
which have sometimes to be taken in the interest of administration. It is true H
1294 SUPREME COURT REPORTS [1999] 3 S.C.R.

A that the fear of being proceeded against in a court oflaw for tort of misfeasance
in public office may keep them on the right path and they may not falter, but
-
there is already the fear of departmental action or proceedings being initiated
against them departmentally which itself is a safeguard for proper
administration. Departmentally, they are answerable for their lapses,
Ministers, or, for that matter, even the Government is answeral;lle to
B Parliament If they were constantly under the fear or threat of being proceeded
a'ainst in a court of law for even slightest of lapse or under constant fear
o exemplary damages being awarded against them, they will develop a
defensive attitude which would not be in the interest of administration. If the
power has been exercised bona fide and honestly, there cannot be any
c occasion for exemplary damages being awarded notwithstanding that
.~

unintended injury was caused to someone. [1362-C-G; 1363-B]
Huckle v. Money and John Wilkes v: Wood, (1783) 2 Wils. KB 205 and
(1763) Lofft 1; Benson v. Fredrick, (1766) 3 Burr. 1845; Rullidge v. Wade,
(1769) 3 Wils. KB 18; Rookes v. Barnard, (1964) AC 1129; Mccarey v.
D Associated Newspapers Ltd., (1965) 2 QB 86= (1964) 3 All ER 947;
Broadway Approvals Ltd v. Odhams Press Ltd, (1965) 2 All ER 523; Broome
v. Cassell & Co. Ltd., (1971) 2 All ER 187; Cassell & Co. Ltd. v. Broome &
Anr., (1972) 1 All ER 801 = (1972) A.C. 1027) and Yuen Kun Yev & Ors. v.
Attorney General of Hong Kong, (1987) 2 All ER 705, referred to.

E 33. A plaintiff cannot recover damages unless he is the victim of
punishable behaviour. In the instant case, there was no plaintiff. The petitioner,
Common Cause, cannot be said to be a plaintiff nor can it claim to have
suffered any damages or loss on account of the conduct of the petitioner.
Further award of exemplary damages should be moderate. Third relevant
consideration is means of the party. The Conduct of the parties throughout
F the proceedings would also be a relevant .consideration in assessing exemplary
damages. These elements or considerations are extremely relevant in
determining the amount of exemplary damages but, unfortunately, none of
these factors has been taken into consideration and after recording a finding
that the conduct of the petitioner was oppressive and that he had made
G allotments in favour of various persons for extraneous considerations, the
court awarded an amount of Rs. 50. lakhs, as punitive damages.
S'
[1364-F-H; 1365-A-C]
Rookes v. Barnard, (1964) A.C. 1129;

34. Right to access to this Court under Article 32 of the Constitution
H is a fundamental right The court has been given the power to issue directions
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. 1295
or orders writs for the enforcement of the fundamental rights. Obviously, the A
fundamental rights would be enforced against the Government or its executive
or administrative officers of other public bodies. It is in the matter of
enforcement of fundamental rights that the court has the right to award
damages to compensate the loss caused to a person on account of violation
of his fundamental rights. However, the State itself cannot claim the right
of being compensated in damages against its officers on the ground that they B
had contravened or violated the fundamental rights of a citizen. The whole
thing has to be examined in the context of Article 32 of the Constitution of
India under which relief to a person or citizen can be granted only against
Union oflndia or the State of their Instrumentalities but the State cannot
legally claim that since one of its Ministers or Officers had violated the C
fundamental rights of a citizen or had acted arbitrarily, it should be
compensated by awarding exemplary damages against that officer or Minister.
Petitioner, as Minister of State for Petroleum and Natural Gas, was part of
the Central Govt. By directing petitioner to pay a sum of Rs. 50 lakhs to the
Govt., the Court bas awarded damages in favour of the Govt. of India in
proceedings under Article 32 of the Constitution which is not permissible D
as the Court cannot d.irect the Govt. to pay the exemplary damages to itself.
[1363-G-H; 1364-A-F]
35. The direction for investigation by the C.B.I. into the offence of
"criminal breach of trust" or "any other offence" consists of two parts: (a)
Investigation by the C.B.I. into the offence of criminal breach of trust; and B
(b) Investigation by the C.B.I. into any other offence. [1365-DJ

36. The basis for the direction relating to investigation into the offence
of "criminal breach of trust" is that (1) a Minister holds a trust on behalf
of the people, and (2) he has to deal with the people's property in a fair and
just manner. He cannot commit breach of the trust reposed in him by the F
people. This is a philosophical concept and reflects the image of virtue in its
highest conceivable perfection. This philosophy cannot be employed for
determination of the offence of "criminal breach of trust" which is defined
in the Indian Penal Code. Whether the offence of "criminal breach of trust"
has been committed by a person has to be determined strictly on the basis
of the definition of that offence set out in the Penal Code. G
[1365-E-G-H; 1366-A}
37. The "Doctrine of Public Trust" is a doctrine of environmental law
under which the natural resources such as air, water, fore~t, lakes, riven
and wild life are public properties "entrusted" to the Government of their
safe and proper use and proper protection. This 'Doctrine' has been evolved H
1296 SUPREME COURT REPORTS [1999] 3 S.C.R.

A so as to prevent unfair dealing with or dissipation of all natural resources.
But this Doctrine cannot be invoked in fixing the criminal liability and the -
-
whole matter has to be decided on the principles of criminal jurisprudence,
one of which is that the criminal liability has to be strictly construed and
offence can be said to have been committed only when all the ingredients of "
B that offence as defined in the Statute are found to have been satisfied.
Therefore, the petitioner does not, on becoming the Minister of State for
Petroleum and Natural Gas, assume the role of a "trustee" in the real sense
nor does a "trust" come into existence in respect of the Government
properties. [1366-C-F; 1369-B]

C MC. Mehta v. Union of India, [1997] 1 SCC 388, referred to.

Tito v. Wadell (No.2), (1977) 3 All ER 129; (1880) 15 CH DI, referred
to.
38. A trust contemplated by Section 405 IPC would arise only when
there is an entrustment of property or dominion over property. There has,
D therefore, to be a property belonging to someone which is entrusted to the
person accused of the offence under Section 405. The entrustment of property
creates a trust which is only an obligation annexed to the ownership of the
property and arises out of a confidence reposed and accepted by the owner.
The word "property, used in Section 409 IPC means the property which can
E be entrusted or over which dominion may be exercised. Mere exercise of
"power to allot" petrol pumps under discretionary quota cannot, therefore,
be treated as "property", within the meaning of Section 405, capable of being
mis-utilised or mis-appropriated. [1369-E-F; 1370-F-G]
39. Having regard to the facts of the case and the ingredients of the
F offence constituting criminal breach of trust, as defined in Section 405, or
the offence as set out in Section 409 IPC, there was no case made out against
the petitioner for any case being registered against him on the basis of the
judgment passed by this Court nor was their any occasion to direct an
investigation by the CBI in that ,case. [1371-B]

G The State of Gujarat v. Jaswant Lal Natha/al, AIR (1968) SC 700;
Rashmi Kumar v. Mahesh Kumar Bhada, (1997] 2 SCC 397; Pratibha Rani
v. Suraj Kumar, (1985) 2 SCC 370; Chef/or Mankkal Narayan Ittiravi
Namliudiri v. State of Travancore-Cochin, AIR (1953) SC 478=(1954) Crl.
W 102; C.B./. v. Duncans Agro Industries Ltd., Calcutta, [1996] 5 SCC 591=
AIR(l996) SC 2452 and R.f\. Dalmia v. Delhi Admn., [1963) 1SCR253=
H AIR (1962) SC 1821, referred to.
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. 1297

40. The other direction, namely, the direction to the CBI to investigate A
"any other offence" is wholly erroneous and cannot be sustained. Obviously,
the direction for investigation can be given only ifan offence is,primafacie,
found to have been committed or a person's involvement is prima facie
established, but a direction to the CBI to investigate whether any person has
committed an offence or not, cannot be legally given. Such a direction would B
be contrary to the concept and philosophy of "LIFE" and "LIBERTY"
guaranteed to a person under Article 21 of the Constitution. This direction
is in complete negation of various decisions of this Court in which the
concept of "LIFE " has been explained in a manner which has infused "LIFE"
into the letters of Article 21. A man has, therefore, to be left alone to enjoy
"LIFE "without fetters. He cannot be hounded out by the Police or CBI C
merely to find out whether he has committed any offence or is living as a
law-abiding citizen. Even under Article 142 of the Constitution, such a
direction cannot be issued. While passing an order under Article 142 of the
Constitution, this Court cannot ignore the substantive provision of law much
less the constitutional rights available to a person.(1371-C-D-H; 1372-A-B) D

Francis Coralie Mulling v. Administrator Union Territory of Delhi,
AIR (1981) SC 746 = (1981) 1 SCC 608=(1981) 2 SCR 516; Olga Te/is &
Ors., v. Bombay Municipal Corpn. & Ors., AIR (1986) SC 180 = (1985) 3
SCC 545=(1985) Supp. 2 SCR 51 Delhi Transport Corpn. v. D.T.C. Mazdoor
Congress & Anr., AIR (1991) SC 191 (paras 223, 234 and 259) = [1991) E
Supp. 1 SCC 600 = (1990) Supp. 1 SCR 142; Kharak Singh v. State of UP.,
AIR(l963) SC 1295 = (1964) l SCR 332 and Supreme Court Bar Assn. v.
Union of India & Ors., [1998) 4 SCC 409=AIR (1998) SC 1895, referred
to.
F
41. It is necessary to maintain the rule of accountability and liability
of the Executive including public servants in administrative matters. Further
there should be transparency in what all they do, specially where grant of
largesse is concerned. But, the present case is being decided on its own
peculiar facts and features in which, the finding as to the commission of tort G
of misfeasance recorded by this Court or the award of exemplary damages
as also direction for investigation by the CBI, cannot be sustained on account
of errors apparent on the face of the record. (1372-F-G)

S. Nagaraja & Ors., v. State ofKarnataka & Anr., [1993) Supp. 4 SCC
~~~~ H
1298 SUPREME COURT REPORTS [1999] 3 S.C.R..

A .ORJGINAL JURISDICTION: Writ Petition (C) No. 26 of 1995.

IN

REVIEW (C) No. 98 of 1997.

B Under Article 32 of Constitution of India.

K. Parasaran (Gopal Subramnium) .(A.C), P.P. Rao, S.B. Sanyal,
S.C. Maheshwari, K.C. Kaushik, P.R.Tiwari, Arun Bharadwaj, R. Reghunath,
Ms. Bina Madhuvan Ms. Ruchi Khurana, Ms.Indu Verma, P.H. Parekh,
Navin Prakash, M.P.Shorawala, Ms.Anil Katiyar, (H.D. Shourie) (RR-in-
C person) (NP), Anupam Gupta, Ashok K.Mahajan, Ms.Sandhya Gowswami,
B.S. Chahar, (Ashok Mathur) for State of H.P. Ms. Beena Prakash, G.
Prakash, (Sunil Kumar Jain, Vijay Hansaria, J.K. Bhatia,) for Mis.Jain
Hansaria & Co. S. Goswami, J.B. Singh and P.K. Chakravarti for the
appearing parties.
D
The Judgment of the Court was delivered by

S. SAGHIR AHMAD, J. This is a Review Petition in Writ Petition No.
26 of 1995 which was filed by Mr. H.D. Shourie for the following reliefs:-
E

-
"(i) Pass an appropriate writ, order or orders directing the
Respondents l to 3 to specifically declare as to when the Union
of India will now bring before the Parliament an appropriately
drafted Bill for enactment of legislation for the establishment of
the institution of Lokpal, or a suitable alternative system of the
F nature of Ombudsman which is operating in a number of other
countries, for checking and controlling corruption in public
offices, inter alia, at the political and bureaucratic levels, and
whether in the enactment of such legislation they will take into
consideration the suggestions that have emanated from the
G Colloquium recently organised under the auspices of Indian
Institute of Public Administration with the participation of foreign
and Indian experts for examining various aspects of the matter
relating to establishment of Ombudsman institution in this
country;

H (li) Pass an appropriate writ, order or orders directing that the
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1299
institutions and organisations of the Comptroller and Auditor A
General oflndia, Chief Vigilance Commissioner, and the Central
Bureau of Investigation should indicate to the Hon'ble Court the
specific steps which they will take for effectively overcoming
any inadequacies and weaknesses in the operations of these
important institutions which presently hamper effective and B
efficacious check on prevalence of corrupt practices in the country
and to curb corruption at all political and bureaucratic levels;
(iii) Pass an appropriate writ, order or orders appointing a Commission
or Commissioner to urgently undertake comprehensive study of
the present inadequacies in the Prevention of Corruption Act
1947 for making specific recommendations to ~trengthen this C
enactment for achieving the objective of curbing and checking
corruption at the political and bureaucratic levels in the country.
{iv) Pass an appropriate writ, order or orders directing the State
Governments Respondents to indicate to the Hon'ble Court as
to when they propose implementing the specific suggestions D
which have been made for strengthening and improvement of
the functioning of the system of Lokayukta, including inter alia,
the following :

(a) To ensure expeditious establishment of the institution of
Lokayukta and Upa-Lokayukta in every State; E
(b) To achieve uniformity in the provisions of various Lokayukta
and Upa-Lokayukta Acts; and

(c) To confer Constitutional status on the institution of Lokayukta."
F
The petition was taken up by this Court on 10.2.95 when the following
Order was passed:-

"After hearing Mr. Shourie, appearing in-person, we give him liberty
to amend the petition by making broad base on the subject of curbing
corruption in the country. To come up on 24.2.95." G
On 10.5.95, the following Order was passed:-

"We request the Supreme Court Legal Aid Society to depute a counsel
to assist us in this case alongwith Mr. Shourie, Adv. The Legal Aid
Society shall also serve the unserved respondents by depositing the H
1300 SUPREME COURT REPORTS [1999] 3 S.C.R.

A necessary process fee and other expenses. To be listed on 11th
August, 1995. All affidavits and counter affidavits may be tendered
in the Registry."

On 11.8.95, the Court passed the following Order:-

B "Mr. Shourie, the petitioner appearing in-person, states that it is of
utmost importance to have a Lok Pal to curb corruption in the country.
Mr. Gupta, 'learned Solicitor General states that efforts have been
made more than once to have consensus regarding the terms and
conditions of the proposed bill. According to him efforts are still
being made. It is a matter which concerns the parliament and the Court
c cannot do anything substantial in this matter. Short of that, learned
Solicitor General states that he would apply his mind to the various
aspects raised in this petition and make some useful suggestions. Mr.
Muralidhar, appearing as amicus curiae to assist us, also states that
he would examine the various reports submitted by Comptroller and
D Auditor General from time to time and in consultation with the Solicitor
General and Mr. Shourie make some suggestions for the consideration
of this Court.

Mr. Shourie has invited our attention to a news item in the front
page of Indian Express of Friday August 11, 1995 under the caption
E "In Satish Sharma's reign, petrol and patronage flow together". It is
not possible for us to take any action on the press report. On our
suggestion the Solicitor General takes notice of this news item and
states that he would have the matter examined in the Ministry
concerned and shall file an affidavit of the Secretary concerned in the
Ministr) reacting to this news item. He may file the affidavit within
F the period of eight weeks.

The Writ Petition is adjourned to 13.10.95."

The petition, thus, was diverted towards Captain Satish Sharma who
was, at that time, Minister of State for Petroleum and Natural Gas in the
G Central Government. By Judgment dated September 25, 1996, [1996] 6 SCC
530, all the 15 petrol outlets, allotted by the Minister to various persons out
of his discretionary quota, were cancelled and the following directions were
issued to Captain Satish Sharma (petitioner) :-

"Capt. Satish Sharma shall show-cause within two weeks why a direction
H be not issued to the appropriate police authority to register a case and
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1301

initiate prosecution against him for criminal breach of trust or any A
other offence under law. He shall further show-cause within the said
period why he should not, in addition, be made liable to pay damages
for his ma/a fide action in allotting petrol pumps to the above
mentioned fifteen persons."

The petitioner submitted the reply to the show-cause notice which was
B
disposed of by Judgment dated .November 4, 1996 [1996] 6 SCC 593. The
following operative Order was passed :-

"We are of the view that the legal position that exemplary damages
can be awarded in a case where the action of a public servant is C
oppressive, arbitrary or unconstitutional is unexceptionable. The
question for consideration, however, is whether the action of Capt.
Satish Sharma makes him liable to pay exemplary damages. In view of
the findings of this Court in Common Cause Case - quoted above -
the answer has to be in the affirmative. Satish Sharma's actions were D
wholly arbitrary, ma/a fide and unconstitutional. This Court has given
clear findings to this effect in the Common Cause case. We, therefore,
hold that Capt. Satish Sharma is liable to pay exemplary damages.

We have heard Mr. HN Salve on the question of quantum. Mr.
Salve has vehemently contended that Capt. Sharma was a part of the E
system which was operating before his joining as a Minister. According
to him the types of wrongs were being committed even earlier on the
assumption that the Minister's discretion was to be exercised on his
subjective satisfaction. He has further contended that since the concept
of absolute liability of public servants for misfeasance has been of F
recent origin in this country even while awarding exemplary damages
leniency should be shown. There is some plausibility in the contentions
•
..
j
raised by Mr. Salve. After examining all the facts and circumstances
of this case and giving thoughtful consideration to this aspect, we
direct Capt. Satish Sharma to pay a sum of Rs. 50 lacs as exemplary
damages to the Government Exchequer. Since the property with which G
Capt. Sharma was dealing was public property, the government which
is "by the people" has to be compensated. We further direct Capt.
Sharma to deposit the amount with the Secretary, Ministry of Finance,
Government of India within nine months from today. The amount if
not paid, shall be recoverable as arrears of land revenue." H
'
1302 . SUPREME COURT REPORTS [1999) 3 S.C.R.

A The present Review Petition relates to these two Judgments.

The Review Petition was put up before the Bench comprising of Hon.
Bharucha and Faizan Uddin, JJ. on 28.1.1997 when the Court directed "Issue
notice on the Review Petition."

B On notice being served on Mr. H.D. Shourie, he filed his reply to the
Review Petition on 21.2.1997.

The office report dated 30th June, 1997 is to the following effect :

"In the matter above-mentioned, this Court on 28th January, 1997
....
c directed to issue notice of the Review Petition.

Accordingly, notice was issued to both the respondents and hence
the service of notice is complete as both the respondents are
represented by Mr. H.D. Shourie, Respondent in person and Ms. Anil
Katiyar, Advocate for Respondent_ No.2.
b
Mr. Ashok K. Mahajan, Advocate has filed Application for
impleadment on behalf of Mr. Arun K. Gupta resident of Kothi No. 68,
Sector VIIIA, Chandigarh and also seeking stay of further investigation
by CBI during pendency of Review Petition. Since the said Application
was not served on other side, a letter dated 4th March, 1997 and •
E another letter dated 30th June, 1997 was issued to Mr. Ashok K.
Mahajan to s~rve it on Mr. H.D. Shourie, Respondent No. 1 and Mrs.
Anil Katiyar representing Respondent No. 2 and Mr. P.H. Parekh,
Advocate. He was also requested to furnish proof of service but he
has not furnished the same so far.
-
F Further, Mrs. Sandhya Goswami, Advocate has also filed four separate
Applications for impleadment on behalf of Mis Shiv Balak Pasi, Syed
,-.,
Hassan Saukat Abidi, Dharmesh Kumar and Pradeep Kumar without
serving its copies on the other sides. She was asked to serve the same
on all the parties and furnish proof of service but the same has not
.,.
.._

G been furnished by her so far. All the Applications for impleadment as
party are being circulated to Hon'ble Judges with this office report. ~

It is further submitted that Mrs. Anil Katiyar, Advocate has filed an .
II-
Application for Clarification and modification of order dated 25th
September, 1996 which has been registered as I.A. No. 6. Further she
H has also filed counter affidavit ort behalf of Union of India deposed
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1303

..... by Director, Ministry of Petroleum and Natural Gas, Government of A
India. The said Application and counter affidavit are being circulated
with this office report for orders."

Thereafter, the matter came up before the Bench comprising of Hon. SC
Sen and Sujata Manohar, JJ., on 8.7.1997. Mr. H.D. Shourie, who had filed the
Writ Petition (C) No. 26 of 1995, was present in person, but the case was B
adjourned to 25th of July, 1997. On 25. 7.1997, the case was shown in the
cause-list, but the following notice was also published in that cause list:

"TAKE NOTICE THAT the above mentioned matters listed in Court
No. 8 before a Special Bench of Hon. Mr. Justice S.C. Sen and Hon.
Mrs. Justice Sujata V. Manohar, as Item Nos. "C" and "D" in the Daily c
List for 25th July, 1997 issued on 19th July, 1997 will not be taken up
for hearing and the same stand adjourned to 22nd August, 1997.

BY ORDER

DATED this the 25th day of July, 1997." D
The case was thus adjourned to 22.8.1997 and on that date the Bench
comprising of Hon. SC Sen and Sujata Manohar, JJ., adjourned the case to
9.9.1997. Mr. K. Parasaran, Senior Counsel appearing for the petitioner, was
directed to give his written arguments. On l.9.1997, Mr. Gopal Subramaniam,
Senior Counsel, was appointed as amicus curiae. When the case came up E
before the Bench of Hon. SC Sen and Sujata Manohar, JJ., Their Lordships
released the case with the further direction that it would not be treated as
part-heard with them. On 27.3.1998, the case came up before the Bench of
Hon. SC Agrawal and Sujata Manohar, JJ. when the following order was
passed
F
"Since the argument on this petition is likely to take some time it is
directed that the matter may be listed on a non- miscellaneous day.
The Registrar Judicial will take appropriate directions from Hon'ble the
Chief Justice for listing the matter before an appropriate bench."
G
It was thereafter that the matter was placed before this Bench. We have
.....
heard learned counsel for the parties. We have also heard Mr. Gopal
Subramaniam, Senior Counsel, (Amicus Curiae).

Mr. K. Parasaran, learned Senior Counsel for the applicant, has contended
that since the applicant was Minister of State for Petroleum in the Central H
1304 SUPREME COURT REPORTS [1999] 3 S.C.R.

A Government and it was in his capacity as an essential component of the
Central Government, that he had made allotment of Petrol Pumps out· of his
discretionary quota, his act in making the allotments shall be treated to be the
act of the Central Government with the result that even if such allotments
were cancelled on the ground of arbitrary exercise of power, the Court could
not have legally directed exemplary damages to be paid by the Government
B to itself. He also contended that the jurisdiction of this Court under Article
32 was limited, unlike the vast jurisdiction of the High Courts under Article ....
226 of the Constitution and, therefore, in exercise of the Jim ited jurisdiction,
the Court cannot award exemplary damages for the "tort of misfeasance in
office", as in the proceedings under this Article, which constitute Public Law
C proceedings, damages can be awarded only for the' violation of the Fundamental
Rights of citizens either by the Government or its officers, specially the Right
to Life, but not for "Tort" for which action should have been initiated under
the Private Law by filing a suit in a Court of competent jurisdiction.

Learned counsel for the petitioner contended that the petitioner being
D a Minister of State in the Union Cabinet was a part of the Governm~nt and
his act being the act of the President, as the petitioner was in the Central
Cabinet, the same could not be made the basis of action for damages under
the Law of Torts and, therefore, under Public Law as well, the petitioner could
not be held liable for damages or, for that matter, exemplary damages.

E Relying upon the decision of this Court in Samsher Singh & Anr. v.
State ofPU1yab, [1975] I SCR 814 =AIR 1974 SC 2192, which specifically dealt
with the business rules of the Union Cabinet and laid down that the act of
a Minister would be treated as the act of the President or the Governor, as
the case may be, learned counsel for the petitioner contended that if the
F petitioner, in exercise of his discretionary power, had allocated or allotted
petroleum outlets to needy persons, he would be treated to have acted only
on behalf of the President and his act could not be questioned in any court,
including this Court, nor could the act of allotment of petrol outlets to various
persons constitute a basis for damages. The contention further is that the
petitioner having acted as Minister of State, his act would be treated to be
G the act of the entire Cabinet which, on the principle of'collective responsibility',
would be treated to have endorsed the act of the petitioner in making the
allotments of Petrol outlets and since the Cabinet is answerable to the
Parliament, where the allotments were not questioned, the same cannot be
questioned here in this Court.

H We have seriously considered the contention of Mr. Parasaran, as set
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1305
out above, but we are unable to agree with him on the broad proposition A
placed before us.

The Executive power of the Union is vested in the President under
Article 53 of the Constitution. The extent of the Executive power is indicated
in Article 73. The next Article, namely, Article 74 provides for a Council of
Ministers to aid and advise the President. Article 75(3) speaks of the collective B
responsibility of the Cabinet which provides that the Cabinet shall be
responsible to Parliament. Article 77 provides for the conduct of business of
the Government of India and clause (3) thereof empowers the President to
I
make rules for the convenient transaction of its business and for allocation
amongst Ministers of the said business. It is in exercis~ of this power that C
rules for allocation of business have been framed under which various
divisions of work to different Ministries have been indicated. Distribution of
petroleum products, including petroleum outlets, is also one of the subjects
which has been allocated to the Ministry of Petroleum.

The functions of the Govt. are carried out in the name of the President D
by Ministers appointed by him on the advice of the Prime Minister. The
Executive consists of :

(a) Prime Minister and Ministers who are members of the Cabinet;
(b) Ministers who are not of Cabinet rank;
E
(c) The qvil Service.

Since the functions of the Govt. are carried on by the Executive in the
name of the President on the advice of Ministers, they (Ministers) alone are
answerable to the Parliament. The Civil Service as such has no Constitutional
personality or responsibility separate from the duly constituted Govt. F
Article 77(1) and (2) provide that whatever executive action is taken by
the Government of India, the same shall be expressed to have been taken in
the name of the President.

Executive power is not defined in the Constitution. Article 73 relating G

• to the Union of India and Article 163 relating to the State deal primarily with
the extent of executive power. In Rai Sahib Ram Jawaya Kapur v. State of
Punjab, [1955] 2 SCR 225 =AIR 1955 SC 549, the then Chief Justice Mukherjee
pointed out:-

"lt may not be possible to frame an exhaustive definition of what H
1306 SUPREME COURT REPORTS [1999] 3 S.C.R.

A executive function means and implies. Ordinarily the executive power
connotes the residue of governmental functions that remain after
legislative and judicial functions are taken away."

This Judgment also deals with the concept of Cabinet, the Council of
Ministers, its collective responsibility and how the Executive functions subject
B to the control of the Legislature. It is laid down that although the President
is the head of the Executive, he acts on the aid and advice of the Council of
Ministers, headed by the Prime Minister, who are all members of the Legislature
and since the President has to act upon the advice of the Council of Ministers,
the Legislature indirectly controls the functioning of the Executive. The relevant
C portions are extracted below:-

"Our Constitution, though federal in its structure, is modelled on
the British Parliamentary system where the executive is deemed to
have the primary responsibility for the formulation of governmental
policy and its transmission into law though the condition precedent
D to the exercise of this responsibility is its retaining the confidence of
the legislative branch of the State..... In India, as in England, the
executive has to act subject to the control of the legislature; but in
what way is this control exercised by the legislature? Under Article
53(1 ) .. ., the executive power of the Union is vested in the President
but under Article 75 there is to be a Council of Ministers with the
E Prime Minister at the head to aid and advise the President in the
exercise of his functions. The President has thus been made a formal
or constitutional head of the executive and the real executive powers
are vested in the Ministers or the Cabinet. The same provisions obtain
in regard to the Govt. of States; the Governor ... occupies the position
F of the head of the executive in the State but it is virtually the council
of Ministers in each State that carries on the executive Govt. In the
Indian Constitution, therefore, we have the same system of
parliamentary executive as in England and the Council of Ministers
consisting, as it does, of the members of the legislature is, like the
British Cabinet, 'a hyphen which joins, a buckle which fastens the
G
legislative part of the State to the executive part'. The Cabinetienjoying,
as it does, a majority in the legislature concentrates in itselrthe virtual
control of both legislative and executive functions; and as the Ministers
constituting the Cabinet are presumably agreed on fundamentals and
act on the principle of collective responsibility, the most important
H questions of policy are all formulated by them."
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1307
This decision was referred to in State of MP. v. Thakur Bharat Singh, A
[1967] 2 SCR 454 = AIR (l 967) SC 1170, wherein it was held that if the
executive action of the Government affected prejudicially the rights of any
citizen, such action could be justified only if it was supported by the authority
of law. The concept and the extent of executive action was also examined by
this Court in Naraindas lndurkhya v. State of MP., [1974] 3 SCR 624 = [1974] B
..- 4 SCC 788 =AIR (1974) SC 1232, in which the decision in Rai Saheb Ram
Jawaya Kapur's case (supra) was followed and it was laid down that the State
Government could prescribe textbooks in the exercise of its executive power
so long as it did not infringe the rights of anyone. This decision was reiterated
in Jayantilal Amratla/ Shodhan v. F.N. Rana, [1964] 5 SCR 294 =AIR (1964)
SC 648 and again in Bishambhar Dayal Chandra Mohan v. State of U.P., C
[1982] I SCC 39 = [1982] I SCR 1137 =AIR (1982) SC 33. The whole constitutional
position was reconsidered by a Seven ... Judge Bench of this Court in Samsher
Singh & Anr. v. State ofPunjab, [1975] l SCR 814 = [1974] 2 SCC 832 =AIR
(l 974) SC 2192, in which the decision in B.K. Sardari Lal v. Union of India,
[1970] l SCC 411 = [1971] 3 SCR 461 =AIR (l 971) SC 1547 was specifically
overruled and it was held that under Article 74(1 ), it is the function of the D
Council of Ministers to advise the President over the whole of the Central
field and nothing is excepted from that field by this Article. It was also
pointed out that the Constitution of India has adopted the parliamentary or
the Cabinet form of Government on the British model. The principle of English
Constitutional Law that the King does not act on his own, but on the advice E
of Council of Ministers is embodied in the Indian Constitution as may be
evident from the following words of Justice Krishna Iyer in that case:-

"Not the Potomac, but the Thames, fertilises the flow of the
Yamuna, if we may adopt a riverine imagery. In this thesis, we are
fortified by precedents of this Court, strengthened by Constituent F
Assembly proceedings and reinforced by the actual working of the
organs involved for about a 'silver jubilee' span of time."

It was also pointed out in this case that the words "business of the
Government of India" and "the business of the Government of the State", as
used in Articles 77(3) and 166(3), include "all executive business". Seervai in G
his treatise "Constitutional Law of India", Silver Jubilee Edition, Fourth Edition,
on page 2037 has, after a critical analysis of the Judgment, extracted the
following principles on the "business of the Government of India and allocation
of business among Ministers" :-
"(i) The expressions "business of the Government of India" and H
1308 SUPREME COURT REPORTS [1999] 3 S.C.R.

A "the business of the Government of the State" in Arts. 77(3) and
'"
166(3) includes "all executive business".

(j) "Where the Constitution required the satisfaction of the
President or the Governor for the exercise of any' power or function
by the President or the Governor as the case may be ... the satisfaction
B required by the Constitution is not the personal satisfaction of the
President or the Governor but is the satisfaction of the President or -..
of the Governor in the constitutional sense under the Cabinet system
of government .... It is the satisfaction of the Council of Ministers on
whose aid and advice the President or the Governor generally exercises
all his powers and functions .... " Arts. 77(3) and 166(3) provide that the
c President or the Governor shall make rules for the more convenient
transaction of the business of government and the allocation of
functions among Ministers. Rules of business and the allocation of
functions to Ministers indicate that the satisfaction of the Minister or
the officer is the satisfaction of the President or the Governor.
D (k) Rules of business and allocation of business among 1v1inisters
are relatable to Arts. 53 and 154 which provide that executive power
shall be exercised by the President and by the Governor either directly
or through subordinate officers. The provisions made in Arts. 74 and
163 for a Council of Ministers to aid and advise the President and the
E Governor "are sources of the business."

(I) Where the functions entrusted to a Minister are performed by
an officer employed in the Minister's department, there is in law no
delegation to that officer because the act or decision of the officer is
that of the Minister: Halsbury, Vol. 1, 4th ed. para 748."
F
In view of the discussion held above, it will be seen that though an ...
order is issued in the name of the President, it does not become an order of
the President passed by him personally, but remains, basically and essentially,
the order of the Minister on whose advice the President had acted and passed
G that order. Moreover, as required by Article 77 (1), all executive actions of the
Govt. of India have to.be expressed in the name of the President; but this
would not make that order an order passed by the President personally. That
being so, the order carries with it no immunity. Be~ng essentially an order of
the Govt. of India, passed in exercise of its Executive functions, it would be
amenable to judicial scrutiny and, therefore, can constitute a valid basis for
H exercise of power of judicial review by this Court. The authenticity, validity
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1309
,.,. . and correctness of such an order can be examined by this Court in spite of A
the order having been expressed in the name of the President. The immunity
available to the President under Article 361 of the Constitution cannot be
extended to the orders passed in the name of the President under Article 77
(I) or Article 77 (2) of the Constitution.

The related question as to the liability of the Minister to pay damages B
to the Govt. will be considered by us while dealing with the "Tort of
Misfeasance in Public Office" and payment of exemplary damages to the
Govt.

The other aspect of the matter as argued by Mr. K. Parasaran as to the
"collective responsibility" of the Cabinet with regard to the allotment of petrol
c
outlets made by the petitioner in exercise of his discretionary quota may now
be considered. It is contended by Mr. K. Parasaran that under the scheme of
the Constitution, any order passed by the Minister shall be treated to be an
order passed by the Cabinet which is collectively answerable to the House
of the People under Article 75 (3). It is contended that an order passed by D
the Minister individually in favour of various persons to whom petrol outlets
were allotted cannot be questioned as it was not raised before the House of
the People to whom the Cabinet, as a whole, was answerable. The whole
series of allotments made by the petitioner could then have been debated
before the House and since this was not done, it is not open to question
those allotments in this Court by a writ petition and the proceedings were E
meant only to embarrass and harass the Cabinet. It is also contended that the
petitioner had the jurisdiction to make allotments of petrol outlets and the
discretionary quota allowed to him was utilised for that purpose. Since it is
not the case that the jurisdiction was, in any way, exceeded or that allotments
were made in excess of the quota or for monetary consideration, the same F
need not have been scrutinised by this Court nor could such allotments be
made the basis for awarding exemplary damages or investigation by C.BJ.

- Let us examine the viability of these submissions.

Our Constitution provides for a Parliamentary form of Govt. Article 79
G
provides that there shall be a Parliament for the Union which shall consist of
" the President and two Houses known respectively as Council of States and
the House of the People. Article 80 provides for the composition of the
Council of States while Article 81 provides for the composition of the House
of the People. Artie.le 81 further provides that the House of the People shall
consist of: (a) not more than 530 members chosen by direct election from H
1310 SUPREME COURT REPORTS [1999] 3 S.C.R.

A territorial constituencies in the States; and (b) not more than 20 members to
represent the Union Territories chosen in such manner as Parliament may by
law provide. Article 83 provides for the duration of Houses of Parliament
while Article 85 provides for the Sessions of Parliament, prorogation of the
Houses or either House and dissolution of the House of the People. Article
86 speaks of the right of the President to address and send messages to
B Houses while Article 87 provides for Special Address by the President after
each General Election to the House of the People and at the commencement
of the first session of each year. Once the election to the House of the People
is complete, comes the stage for the appointment of Prime Minister and
Council of Ministers to aid and advise the President as provided by Article
C 74. Since the elections are contested principally by the political parties who
set up their candidates at the election, there is tacit understanding in keeping
with the British convention, that the party which has secured the majority in
the House of the People would govern while the parties which are in the
minority would sit in the Parliament as members of the "Opposition." It is on
account of this convention that the President invites the leader of the political
D party which has obtained majority, to form the Govt. The President appdiniS
• ,j

the Prime Minister and then the Ministers are appointed on the advice of the
Prime Minister, who constitute the Council of Ministers. Article 75(3) provides
that the Council of Ministers shall be collectively responsible to the House
of the People.
;

E I
The concept of "collective responsibility" is essentially a political
concept. The country is governed by the party in power on the basis of the
policies adopted and laid down by it in the Cabinet Meeting. "Collective
Responsibility" has two meanings: The first meaning which can legitimately
be ascribed to it is that all members of a Govt. are unanimous in support of
F its policies and would exhibit that unanimity on public occasions altho~gh
while formulating the policies, they might have expressed a different view in
the meeting of the Cabinet. The other meaning is that Ministers, who had an

G
opportunity to speak for or against the policies in the Cabinet are t_hereby
personally and morally responsible for its success and failure. -
In the British ConstitUtion & Politics 5th Edition by J. Harvey and L.
Bather, it is said as under :

"Except when a minister explains the reasons for his resignation,
parliament hears nothing of the Cabinet's current deliberations. These
H remain secret, and only decisions as a whole are reported to the
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 13 l l

,. House when policy is announced. Any leakage of divergent views A
held by ministers would, as during Queen Victoria's reign, seriously
weaken the Government. In its decisions, 'the Cabinet is a unity to the
House'. While a minister can speak against any proposal in a Cabinet
-:" meeting, he must either support the policy decided upon or resign.
Recent resignations of this nature are Frank Cousins (Prices and
Incomes Bill, 1966) and Lord Longford (education cuts, 1968). But
B
such resignations are infrequent. Ministers come from the same party
and, at least initially, are fairly homogeneous in their political views .
In any case, a former minister is unlikely to cross the floor of the
House and join the Opposition. His disagreement with the Government
is usually over only one issue, and his basic political outlook remains c
unchanged.

Thus the Cabinet stands or falls together. Where the policy of a
particular minister is under attack, it is the government as whole which
_is being attacked. Thus the defeat of a minister on any major issue
represents a defeat for the Government. However, today, unlike the D
nineteenth century, such defeats do not occur. The use of rigid party
discipline ensures that the Government can always obtain a majority
vote. Nevertheless, criticism may be so severe and widespread that
the Government may modify its policy. If the minister identified with
it feels that his prestige with the party has been badly damaged, he
may resign, e.g. Sir Samuel Hoare (1935) over the proposals to partition E
,.. Abyssinia.

In practice, therefore, all that collective responsibility means today is
that every member of the Government must be prepared to support all
Cabinet decisions both inside and outside the House."
F
It is further provided as under :

"The doctrine of collective responsibili~ has practical advantages.
First, it counteracts departmental separati n for each minister has to
be concerned with policies of other departments. Second, it prevents
the policy of one department being determined unilaterally. Since it is G

- J the Cabinet as a whole which decides, ministers are less likely to be
over-influenced by their civil servants. Third, it ensures that Cabinet
decisions are based on principles and not on personalities.

Collective responsibility does not apply to a minister's responsibility
for his permanent officials or for his personal mistakes." H
1312 SUPREME COURT REPORTS [I 999] 3 S.C.R.

A In this connection, an extract from "The British Cabinet" by Joh'n P.
Mackintosh, I 962 Edn., is set out below as it is also extremely relevant for
this case.

"Much has been said and written about the responsibility of ministers.
The discussion can easily become confused because of the different
B meanings that are attached to the word "responsible". Collective
responsibility will be discussed below, and the first task is to consider
whether there is any separate element of individual responsibility. The
most common political meaning is that a certain minister will answer
parliamentary questions on a given subject. A second sense arises
c· when those in political circles appreciate that a particular policy is
' largely the idea of the minister, rather than the traditional policy of the
party in power, and they may single out the minister for attack. For
instance, in I 903-05 Wyndham was perusing his land purchase schemes
for Ireland in a manner which alarmed many Conservatives and would
certainly have been unlikely under any other Chief Secretary. A third
D sense is simply that a minister is responsible even if a policy is the
work of the Cabinet as a whole but his colleagues choose to place the
burden upon him. Thus Sir Samuel Hoare thought he was acting in
accordance with the views of the ministry in concluding the Hoare-
, Level Pact and his decisions were subsequently endorsed by the
Cabinet till opposition became acute. He was then asked to disavow
E and denounce his actions but preferred, "accepting his responsibility,"
to resign. There is, in addition, the normal moral sense of the word
meaning "culpable" and a minister may, like a private individual, feel
responsible if he could by greater wisdom or exertion have prevented
some unfortunate occurrence.
F
The one aspect that remains is the alleged obligation on a minister to
resign when he or one of his subordinates has blundered. The origin
of this notion is fairly clear. It dates from the 1850s and I 860s when
it was reasonable to assume that a minister could watch over every
significant action of his department. Even then, there would have
G been no need to acknowledge errors in this way but for the power of
the House of Commons to move and carry a motion censuring the
individual in question without necessarily, dislodgipg the government."

From the above, it will be seen that in spite of the fact that the Council
of Ministers is collectively responsible to the House of the People, there may
H be an occasion where the conduct of a Minister may be censured if he or his
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1313

subordinates have blundered and have acted contrary to law. A
No doubt it was open to the House of the People (Lok Sabha) to take
up the issue of the abuse of discretionary quota by the petitioner in his
capacity as the Minister of State for Petroleum, and his conduct could have
been debated and scrutinised on the floor of the House, but the mere fact that
this was not done would not mean that the allotments of petroleum outlets B
by him were immune from judicial scrutiny by this Court under Article 32 of
the Constitution. Therefore, even if the matter was not raised on the floor of
the Lok Sabha, it would be amenable to the jurisdiction of this Court under
Article 32 of the Constitution.

Even in England, all ministers and servants of the Crown are accountable C
to the courts for the legality of their actions, and may be held civilly and
criminally liable, in their individual capacities, for tortious or criminal acts.
This liability may be enforced either by means of ordinary criminal or civil
proceedings or by means of impeachment, a remedy which is probably obsolete.
They are also subject to the judicial review jurisdiction of the courts. [See: D
Halsbury's Laws of England - Fourth Edition (Re-issue), Volume 8(2), Para
422].

Learned counsel for the petitioner contended that neither could the
Court award exemplary damages against the petitioner nor could it order any
C.B.I. investigation as the petitioner in making the allotment of petrol outlets E
had not committed any offence, much less an offence of breach of trust. It
is also contended that the petitioner while making allotments out of his
discretionary quota available to him as Minister of State for Petroleum, had
not committed the tort of misfeasance in public office and, therefore, he wa$
not liable to pay any damages. Mr. K. Parasaran also argued that exemplary
damages under law can be awarded in addition to the damages for the "tort''' F
alleged to have been committed "but where not even damages have been
awarded, there is no question of awarding exemplary damages. It is also
contended that action for tort could have been initiated only in the field of
private law by instituting a suit in a proper Civil Court and not under the
public law, namely, in proceedings initiated under Article 32 of the Constitution G
particularly as intricate questions of fact were involved.

Since the question whether the action could have been initiated under
the public la*'-and whether exemplary damages could have been awarded in
those proceedings relates to the question of jurisdiction, we would take up
this question first. H
1314 SUPREME COURT REPORTS [1999) 3 S.C.R.

A Under Article 226 of the Constitution, the High Court has been given
the power and jurisdiction to issue appropriate Writs in the nature of
Mandamus, Certiorari, Prohibition, Quo-warranto and Habeas Corpus for the
enforcement of Fundamental Rights or for any other purpose. ihus, the High
Court has jurisdiction not / only to grant relief for the enforcement of
Fundamental Rights but also for "any other purpose" which would include
B the enforcement of public duties by public bodies. So also, the Supreme Court
under Article 32 has the jurisdiction to issue prerogative Writs for the
.enforcement of Fundamental Rights guaranteed to a citizen under the
Constitution.

C Essentially, under public law, it is the dispute between the citizen or a
group of citizens on the one hand and the State or other public bodies on
the other, which is resolved. This is done to maintain the rule of law and to
prevent the State or the public bodies from acting in an arbitrary manner or
in violation of that rule. The exercise of constitutional powers by the High
Court and the Supreme Court under Article 226 and 32 has been categorised
D as power of ''judicial review". Every executive or administrative action of the
State or other statutory or public bodies is open to judicial scrutiny and the
High Court or the Supreme Court can, in exercise of the power of judicial
review under the Constitution, quash the executive action or decision .which
is contrary to law or is violative of Fundamental Rights guaranteed by the
E Constitution. With the expanding horizon of Article 14 read with other Articles
dealing with Fundamental Rights, every executive action of the Govt. or other
public bodies, including Instrumentalities of the Govt., or those which can be
legally treated as "Authority" within the meaning of Article 12, if arbitrary,
unreasonable or contrary to law, is now amenable to the writ jurisdiction of
this Court under Article 32 or the High Courts under Article 226 and can be
F validly scrutinised on the touchstone of the Constitutional mandates.

In a broad sense, therefore, it may be said that those branches of law
which deal with the rights/duties and privileges of the public authorities and
their relationship with the individual citizens of the State, pertain to "public
G law", such as Constitutional and Administrative Law; in contradistinction to
"private law" fields which are those branches of law which deal with the
rights and liabilities of private individuals in relation to one another.

The distinction between private law and public law was noticed by this
Court in Life Insurance Corporation ofIndia v. Escorts Limited & Ors., [1985]
H Supp. 3 SCR 909 = [1986] 1 SCC 264 =AIR (1986) SC 1370, in which the Court
COMMON CAUSE, A REGTD. SOCIETYv. U.0.1. [S. SAGHIR AHMAD, J.] 1315

observed as under:- A
"Broadly speaking, the Court will examine actions of State if they
pertain to the public law domain and refrain from examining them if
they pertain to the private law field. The difficulty will lie in demarcating
the frontier between the public law domain and the private law field.
It is impossible to draw the line with precision and we do not want B
to attempt it. The question must be decided in each case with reference
to the particular action, the activity in which the State or the
instrumentality of the State is engaged when performing the action,
the public law or private law character of the action and a host of
other relevant circumstances." C
Public Law field, since its emergence, is ever expanding in operational
dimension. Its expanse covers even co.ntractual matters. (See: Union of India
v. A.L. Rallia Ram, [1964] 3 SCR 164 =AIR (1963) SC 1685; Mulamchandv.
State of Madhya Pradesh, [1968] 3 SCR 214 =AIR (1968) SC 1218, wherein
the principles of restitution and unjust- enrichment were applied). (See also: D
State of West Bengal v. B.K. Monda/ & Sons, [1962] Supp. I SCR 876 =AIR
(1962) SC 779 and New Marine Coal Company Limited v. Union of India,
[1964] 2 SCR 859 =AIR (1964) SC 152.

Government decisions regarding award of contracts are also open to
judicial review and if the decision making process is shown to be vitiated by E
arbitrariness, unfairness, illegality and irrationality, then the Court can strike
down the decision making process as also the award of contract based on
such decision. This was so laid down by this Court in Tata Cellular v. Union
ofIndia, [1994] 6 SCC 651 =AIR (1996) SC 11. Initially the Supreme Court was
of the opinion that while the decision making process for award of a contract
would be amenable to judicial review under Article 226 or 32 of the Constitution, F
a breach of a contractual obligation arising out of a contract already executed
would not be so enforceable under such jurisdiction and the remedy in such
cases would lie by way of a civil suit for damages. (See: Radhakrishna
Agarwalv. State ofBihar, [1977] 3 SCC 457 = [1977] 3 SCR249 =AIR (1977)
SC 1496. But the Court changed its opinion in subsequent decisions and held G
that even arbitrary and unreasonable decisions of the Government authorities
while acting in pursuance of a contract would also be amenable to writ
jurisdiction. This principle was laid down in Gujarat State Financial
Corporation v. Lotus Hotels Pvt. Ltd, [1983] 3 SCC 379 =AIR (1983) SC 848.
This Court even went to the extent of saying that the terms of contract cannot
be altered in the garb of the duty to act fairly. (See: Assistant Excise H
1316 SUPREME COURT REPORTS [1999] 3 S.C.R.

A Commissioner v. Issac Peter, (1994] 4 SCC 104 = (1994] 2 SCR 67. Duty to act,
fairly in respect of contracts was also the core question in Mahabir Auto
Stores v. Indian Oil Corporation, (1990] 1SCR818 = (1990] 3 SCC 752 =AIR
(1990) SC l 031, in which this Court relied upon its earlier decisions in
E.P.Royappav. State o/Tamil Nadu, (1974] 2 SCR348 = [1974] 4 SCC 3 =AIR
B (1974) SC 555; Menka Gandhi v. Union ofIndia, [1978] l SCC 248 = [1978]
2 SCR 621 =AIR (1978) SC 597; Ajay Hasia v. Khalid Mujib Sehravardi,
(1981] l SCC 722 = [1981] 2 SCR 79 = AIR(I981) SC 487; R.D. Shettyv. The
International Airport Authority ofIndia, (1979] 3 SCR 1014 = [1979] 3 SCC
489 =AIR (1979) SC 1628, as also Dwarka Das Marfatia & Sons v. Board
o/Trustees ofthe Port ofBombay, (1989] 3 SCC 293 = (1989] 2 SCR 751 =AIR
C (1989) SC 1642.

Public law remedies have also been extended by this Court to the realm
of tort.

In exercise of jurisdiction under Article 32 of the Constitution, this
D Court has awarded compensation to the petitioners who suffered personal
injuries at the hands of the officers of the Government and the causing of
injuries which amounted to tortious act was compensated by this Court. In
Rudul Sah v. State o/Bihar, [1983]3 SCR 508 = [1983] 4 SCC 141 = AIR(1983)
SC l 086, a Three-Judge Bench of this Court awarded compensation (Rs.
30,000) for illegal detention. In Bhim Singh v. State of Jammu & Kashmir,
E [1985] 4 SCC 677 =AIR (1986) SC 494, a sum of Rs. 50,000 was awarded to
the petitioner for the illegal detention of the petitioner by the State authorities.
The compensation which was directed to be paid on account of police atrocities
was the subject matter of several cases before this Court. A few of them are
People's Union/or Democratic Rights v. State of Bihar, [1987] l SCR 631 =
-
F [1987] l SCC 265 =AIR (1987) SC 355; People's Union/or Democratic Rights
Thru. Its Secy. v. Police Commissioner, Delhi Police Headquarters, [1989] 4
SCC 730 = (1989) (1) Scale 599; SAHELI, a Woman's Resources Centre v.
Commissioner ofPolice, Delhi, [1990] l SCC 422 = [1989] Supp. SCR 488 =
AIR (1990) SC 513;ArvinderSingh Bagga v. State o/U."f., [1994] 6 SCC 565
=AIR (1995) SC 117; P.Rathinam v. Union ofIndia, [19~9] Supp. 2 SCC 716;
G In Re: Death o/Sawinder Singh Grower, (1995) Supp. 4 !SCC 450 = JT (1992)
6 SC 271 = (1992) 3 Scale 34; Inder Singh v. State of Punjab, [1995] 3 SCC
702 =AIR (1995) SC 1949; D.K Basu v. State of West Bengal, [1997] l SCC
416 =AIR (1997) SC 610; Mrs. Pritam Kaur Baryar v. State ofPunjab, [1996)
7 Scale (SP) 11 and Paramjit Kaur v. State of Punjab, (1996) 8 Scale (SP) 6.

H In cases relating to custodial deaths, this Court has awarded
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1317

compensation in Nilabati Behera v. State o/Orissa, [1993] 2 SCC 746 = [1993] A
2 SCR581 =AIR (1993) SC 1960; State ofMP. v. Shyam Sunder Trivedi, [1995]
4 SCC 262 = (1995) 3 Scale 343; People's Union for Civil Liberties v. Union.
ofIndia, [1997] 3 SCC 433 =AIR (1997) SC 1203 and Kaushalya v. State of
Punjab, (1996) 7 Scale (SP) 13.

For medical negligence, compensation was awarded by this Court in B
Supreme Court Legal Aid Committee v. State of Bihar, [1991] 3 SCC 482; Dr.
Jacob George v. State of Kera/a, [1994] 3 SCC 430 = (1994) 2 Scale 563 and
Paschim Banga Khet Mazdoor Samity v. State of West Bengal & Ors., [1996]
4 sec 37 =AIR {1996) SC 2426.

Damages were also awarded by this Court in Mrs. Manju Bhatia v.
c
N.D.MC., [1997] 6 SCC 370 =AIR (1998) SC 223 = (1997) 4 Scale 350.

In N.Nagendra Rao & Co. v. State of Andhra Pradesh, [.1994] 6 SCC
205 =AIR (1994) SC 2663, this Court observed as under:-
D
"Th~refore, barring functions such as administration of justice,
maintenance of law and order and repression of crime etc. which are
among the primary and inalienable functions of a Constitutional
Government, the State cannot claim any immunity. The determination
of vicarious liability of the State being linked with negligence of its E
officers, if they can be sued personally for which there is no dearth
of authority and the law of misfeasance in discharge of public duty
having marched ahead, there is no rationale for the proposition that
even if the officer is liable the State cannot be sued. The liability of
the officer personally was not doubted even in Viscount Canterbury.
But the Crown was held immune on doctrine of sovereign immunity. F
Since the doctrine has become outdated and sovereignty now vests
in the people, the State cannot claim any immunity and if a suit is
maintainable against the officer personally, then there is no reason to
hold that it would not be maintainable against the State."
G
The difference between public and private law was again examined by
this Court in Nilabati Behera v. State ofOrissa, (supra). Dr. Anand, J. (as His
Lordship then was) in his separate concurring Judgment laid down as under:-

"34. The public law proceedings serve a different purpose than the
private law proceedings. The relief of monetary compensation, as H
1318 SUPREME COURT REPORTS (1999] 3 S.C.R.

A exemplary damages, in proceedings under Article 32 by this Court or
under Article 226 by the High Courts, for established infringement of
the indefeasible right guaranteed under Article 21 of the Constitution
is a remedy available in public law and is based on the strict liability
-...
for contravention of the guaranteed basic and indeafeasible rights of
the citizen. The· purpose of public law is not only to civilize public
B power but also to assure the citizen that they live under a legal system
which aims to protect their interests and preserve their rights. Therefore,
when the court moulds the relief by granting "compensation" in
proceedings under Article 32 or 226 of the Constitution seeking
enforcement or protection of fundamental rights, it does so under the
c public law by way of penalising the wrongdoer and fixing the liability
for the public wrong on the State which has failed in its public duty
to protect the fundamental rights of the citizen. The payment of
compensation in such cases is not to be understood, as it is generally
understood in a civil action for damages under the private law but in
the broader sense of providing relief by an order of making 'monetary
D amends' under the public law for the wrong done due to breach of
public duty, of not protecting the fundamental rights of the citizen.
The compensation is in the nature of 'exemplary damages' awarded
against the wrongdoer for the breach of its public law duty and is
independent of the rights available to the aggrieved party to claim . ...
E compensation under the private law in an action based on tort, through
a suit instituted in a court of competent jurisdiction or/and prosecute
the offender under the penal law.

35. This Court and the High Courts, being the protectors of the civil
liberties of the citizen, have not only the power and jurisdiction but
F also an obligation to grant relief in exercise of its jurisdiction under
Articles 32 and 226 of the Constitution to the victim or the heir of the
victim whose fundamental rights under Article 21 of the Constitution
oflndia are established to have been flagrantly infringed by calling
upon the State to repair the damage done by its officers to the
fundamental rights of the citizen, notwithstanding the right of the
G citizen to the remedy by way of a civil suit or criminal proceedings.
The State, of course has the right to be indemnified by and take such ~
action as may be available to it against the wrongdoer in accordance
with law - through appropriate proceedings. Of course, relief in exercise
of the power under Article 32 or 226 would be granted only once it
H is established that there has been an infringement of the fundamental
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.) 1319
,... rights of the citizen and no other form of appropriate redressal by the A

• court in the facts and circumstances of the case, is possible. The
decisions of this Court in the line of cases starting with Rudu/ Sah
v. State ofBihar granted monetary relief to the victims for deprivation
of their fundamental rights in proceedings through petitions filed
under Article 32 or 226 of the Constitution of India, notwithstanding
the rights available under the civil law to the aggrieved party where B
·- the courts found that grant of such relief was warranted. It is a sound
policy to punish the wrongdoer and it is in that spirit that the courts
have moulded the relief by granting compensation to the victims in
'-- exercise of their writ jurisdiction. In doing so the courts take into
account not only the interest of the applicant and the respondent but c
also the interests of the public as a whole with a view to ensure that
public bodies or officials do not act unlawfully and do perform their
public duties properly particularly where the fundamental right of a
citizen under Article 21 is concerned. Law is in the process of
development and the process necessitates developing separate public
law procedures as also public law principles. It may be necessary to D
identify the situations to which separate proceedings and principles
apply and the courts have to act firmly but with certain amount of
circumspection and self- restraint, lest.proceedings under Article32
or 226 are misused as a disguised substitute for civil action in private
law." E
This is a classic exposition of the realm of Public Law by (Dr.) Justice
Anand (as His Lordship then was), wtio has added a note of caution that
while exercising this jurisdiction, the Courts have to act firmly but with self-
restraint lest the jurisdiction is abused as a disguise for civil action under
Private Law. F
Mr. K. Parasaran then contended that in all the cases referred to earlier,
this Court had granted damages to the petitioner as the Fundamental Right
to life under Article 21 of the Constitution was found to have been violated.
To that extent, the Court, according to him, can grant damages even in
G
proceedings under Article 32 of the Constitution but where Right to Life is

--"" not involved, the petitioner would have to file a suit for damages in the Civil
Court under private law jurisdiction and cannot take recourse to proceedings
under public law either in the High Court under Article 226 or in this Court
under Article 32. He contended that interim compensation may be granted by
the Court under Article 32 as immediate relief and the whole matter may be H
1320 SUPREME COURT REPORTS [l 999] 3 S.C.R.

A referred to the Civil Court for detennination of the amount of compensation
or damages payable to the petitioner or the petitioner may be directed to'
approach the Civil Court. This proposition cannot be accepted.

In MC. Mehta & Anr. v. Union ofIndia & Ors., [l 987] l SCC 395, this
Court observed as under:-
B
"7. We are also of the view that this Court under Article 32(1) is free
to devise any procedure appropriate for the particular purpose of the
proceeding, namely, enforcement of a fundamental right and under

c
Article 32(2) of the court has the implicit power to issue whatever
direction, order or writ is necessary in a given case, including all ---
incidental or ancillary power necessary to secure enforcement of the
fundamental right. The power of the court is not only injunctive in
ambit, that is, preventing the infringement of a fundamental right, but
it is also remedial in scope and provides relief against a breach of the
fundamental right already committed vide Bandhua Mukti Morcha
D case. If the court were powerless to issue any direction, order or writ
in cases where a fundamental right has already been violated, Article
32 would be robbed of all its efficacy, because then the situation
would be that if a fundamental right is threatened to be violated, the
court can injunct such violation but if the violator is quick enough to
take action infringing the fundamental right, he would escape from the
E
net of Article 32. That would, to a large extent, emasculate the
fundamental right guaranteed under Article 32 and render it impotent
and futile. We must, therefore, hold that Article 32 is not powerless
to assist a person when he finds that his fundamental right has been
violated. He can in that event seek remedial assistance under Article
F 32. The power of the court to grant such remedial relief may include
the power to award compensation in appropriate cases. We are
deliberately using the words "in appropriate cases" because we must
make it clear that it is not in every case where there is a breach of a
fundamental right committed by the violator that compensation would
be awarded by the court in a petition under Article 32. The infringement
G of the fundamental right must be gross and patent, that is,
in~ontrovertible and ex facie glaring and either such infringement
should be on a large scale affecting the fundamental rights of a large
number of persons, or it should appear unjust or unduly harsh or
-
oppressive on account of their poverty or disability or socially or
H economically disadvantaged position to require the person or persons
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.) 1321
affected by such infringement to initiate and pursue action in the civil A
courts. Ordinarily, of course, a petition under Article 32 should not be
used as a substitute for enforcement of the right to claim compensation
for infringement of a fundamental right through the ordinary process
of civil court. It is only in exceptional cases of the nature indicated
by us above, that compensation may be awarded in a petition under B
Article 32. This is the principle on which this Court awarded
compensation in Rudul Shah v. State of Bihar. So also, this Court
awarded compensation to Bhim Singh, whose fundamental right to

.... personal liberty was grossly violated by the State of Jammu and
Kashmir. If we make a fact analysis of the cases where compensation
has been awarded by this Court, we will find that in all the cases, the C
fact of infringement was patent and inconvertible, the violation was
gross and its magnitude was such as to shock the conscience of the
court and it would have been gravely unjust to the person whose
fundamental right was violated, to require him to go to the civil court
for claiming compensation."
D
Thus, where public functionaries are involved and matter relates to the
violation of Fundamental Rights or the enforcement of public duties etc., the
remedy would lie, at the option of the petitioner, under the public law
notwiths~anding that damages are also claimed in those proceedings.

The decisions relied upon by Mr. Parasaran, namely, P. Rathinam v. E
Union ofIndia & Ors., [1989] Supp. 2 SCC 716 and In Re: Death ofSawinder
Singh Grover, [ 1995] Supp. 4 SCC 450, cannot be pressed in aid as in the
earlier case, criminal trial was pending while in the latter case the matter had
not been finally investigated.

In view of the natural affinity with the British legal system, particularly F
as both the learned counsel have referred to and relied upon the cases
relating to public law decided by the Courts in England, we may consider the
question from that angle and in that light.

In England, the position is not much different. In 1977, when certain G
, procedural changes were brought about on the recommendations of the Law
Commission and Order 53 was introduced, it became possible for a litigant to
make an application for judicial review and claim, in such application, damages
also against public bodies. Under the remedy of judicial review, it is possible
to review not only the merits of the decision in respect of which the application
for judicial review is made, but the whole decision-making process also. A H
1322 SUPREME COURT REPORTS (1999] 3 S.C.R.

A decision of inferior court or a public authority could be quashed by an order .
of Certiorari made on an application for judicial review where that court or
authority acted without jurisdiction or exceeded its jurisdiction or failed to
comply with the rules of natural justice or where there was an error of law
apparent on the face of the record or the decision was unreasonable in the
Wednesbury sense (that is, no reasonable person could have come to the
B conclusion to Which the public authority had arrived at). In view of the
Supreme Court Act, 1981, read with Order 53, it became possible for the High
Courts to grant prerogative orders for mandamus :or Prohibition and Certiorari
in those classes of cases in which it had power ~o do so immediately before
the passing of that Act and by virtue of Order 53, the court also got a power
C even in judicial review proceedings, to grant declaration and injunctions and
to award damages.

If the proceedings were directed to challenge the decision of a public
law nature, and were not initiated for enforcement of private rights, an
application for judicial review was the only permissible course. It may be
D pointed out that one of the restrictions on the making of an application for,
judicial review is that the person has to disclose "sufficient intere~t" and
obtain leave of the court. The Supreme Court Act, 1981, read with •
Otder
, ·I
53,
Rule 3, indicates that no application for judicial review can be mad' (e~ther
in a civil or criminal case) unless the leave to apply for judicial revie~/)1.as
E been obtained. The purpose of this requirement is to eliminate l'.fr-ivoJous,
vexatious or hopeless application for judicial review and to ensure th'at an
applicant is allowed substantive hearing only if the court is satisfied that
there is a case fit for further investigation. As pointed out earlier, the person
applying for judicial review has to disclose that he has a "sufficient interest"
in the matter to which the application relates. This is what is provided by
F Section 31(3) of the Supreme Court Act, 1981 and Order 53 Rule 3(7).

In R. v. Horsham Justices, (19.82) QB 762 = 1982 (2) All ERs 269, a
newspaper reporter and the National'Union of Journalists were held to have
locus standi to apply for judicial review to quash the order of Magistrate
G made under the Contempt of Courts Act, 1961 prohibiting the publication of
any report of committal proceedings until the commencement of the trial.

At some stage, particularly between the 1920s and 1960s, it was thought
that prerogative orders of Certiorari, Prohibition and Mandamus only lay
against persons or bodies .with judicial or quasi judicial functions and did not
H apply to an Authority exJrcising administrative powers. But this distinction
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1323
. between judicial and administrative activities was obliterated by the decision · A
of the House of Lords in Ridge·v. Baldwin, (1964) AC 40 = 1963 (2) All ERs
66. The effect of this decision is that the judicial review lies not only against
an inferior court or tribunal, but also against persons or bodies which perform
public duties or functions.

Thus, judicial review would lie against persons and bodies carrying out B
public functions. But it would not lie against a person or body carrying out
private law and not public law functions. In such cases, the proper remedy
is by way of action for a declaration and, if necessary, an injunction.

There is also a self-imposed restriction on the exercise of power of C
judicial review which is to the effect that the courts would not normally grant
judicial review where there is available another avenue of appeal or remedy.
In R. v. Epping & Harlow General Commissioners, ( 1983) 3 All ERs 257, the
court observed :

"It is a cardinal principle that, save in the most exceptional D
circumstances, the jurisdiction to grant judicial review will not be
exercised where other remedies are available and have not been used."

On an application for judicial review, the Court has power to award
damages to th~ applicant provided the claim for damages has been included
in the statement made in support of the application for leave to apply for E
judicial review. But the relief for damages can be granted only when the court
is satisfied that if the claim had been made in an action initiated by the
applicant, he could have been awarded damages. [Rule 7(1) of Order 53). The
application for judicial review, if not made at the earliest~ is liable to be
dismissed for delay and laches.
F
- There is, therefore, not much of a difference between the powers of the
~ourt exercised here in this country under Article 32 or 226 and those exercised
in England for judicial R~view. Public law remedies are available in both the
countries and the courts can award damages against public authorities to
compensate for the loss or injury caused to the plaintiff/petitioner, provided G
the case involves, in this country, the violation of fundamental rights by the
Govt. or other public authorities or that their action was wholly arbitrary or
oppressive in violation of Article 14 or in breach of statutory duty and is not
a purely private matter directed against a private individual.

Mr. Parasaran next contended that allotment of Petrol outlets by the H
1324 SUPREME COURT REPORTS (1999] 3 S.j::.R.

A petitione; would, in law, be treated as "act of the State" or "Sovereign act"
and; therefore, it. would be immune from civil or criminal action including .,.
action in Tort. This submission is also liable to be rejected.

The liability of. the King under the British Law for tortious acts of the
servants can be assessed from a passage from Rattan Lal's "Law of Torts",
B 23rd Edition, as under:-

"He (The King) is not liable to be sued civilly or criminally for a
supposed wrong. That which the sovereign does personally, the law
presumes will not be wrong; that which the sovereign does by command
c to his servants, cannot be a wrong in the sovereign because, if the
command is unlawful, it is in law no command, and the servant is
responsible for the unlawful act, the same as if there had been no
command. (See: Tobin v. The Queen, (1864) 16 CB [N.S.] 310). So the
Crown was not liable in tort at common law for wrongs committed by
its servants in the course of employment not even for wrongs expressly
-n authorised by it. (See: Canterbury (Viscount) A.H. General (1842) l Ph
306; High Commr. for India & Pakistan v. Lall, (1948) 40 Boni LR 649
=AIR 1948 PC 121 = 75 IA 225). Even the heads of the department
or superior officers could not be sued for torts committed by their
subordinates unless expressly authorised. by them (See: Raleigh v.
Goschen, (1898) l Ch.73); only the actual wrongdoer could be sued
E
in his personal capacity. In practice, the action against the officer
concerned was defended by the Treasury Solicitor and the judgment
was satisfied by the Treasury as a matter of grace. Difficulty was,
however, felt when the wrongdoer was not identifiable. (See: Royster
v. Cavey, (1947) KB 204). The increased activities of the Crown have
F now made it the largest employer of men and the largest occupier of
property. The above system was, therefore, proving wholly inadequate
and the law needed a change which was brought about by the Crown
Proceedings Act, 1947. (See: Home Office v. Dorset Yacht Co., (1970) •
AC 1004 = (1970) 2 All ER 294 [HL]). Nothing in the Act authorises
proceedings in tort against the Crown in its private capacity (s.40), or
G affects powers or authorities exercisable by virtue of the prerogative
of the Crown or conferred upon the Crown by statute (s.l l[l]). Subject
to this, the Act provides that the Crown shall be subject to all those
liabilities in tort to which, if it were a person of full age and capacity,
it would be subject ( l) in respect of torts committed by its servants
H or agents, prpvided that the act or omission of the servant or agent
' .
!COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1325
would, apart from the Act, have given rise to a cause of action in tort A
against that servant or agent or against his estate; (2) in respect of
any breach of those duties which a person owes to his servants or
agents at common law by reason of being their employer; (3) in
respect of any breach of the duties attaching at common law to the
ownership, occupation, possession or control of property. Liability in B
tort also extends to breach by the Crown of a statutory duty. It is also
no defence for the Crown that the tort was committed by its servants
in the course of performing or purporting to perform functions entrusted
to them by any rule of the common law or by statute. The law as to
indemnity and contribution as between joint tort-feasors shall be
enforceable by or against the Crown and the Law Reform (Contributory C
Negligence) Act, 1945 binds the Crown. Although the Crown
Proceedings Act preserves the immunity of the Sovereign in person
and contains savings in respect of the Crown's prerogative and
statutory powers, the effect of the Act in other respects, speaking
generally, is to abolish the immunity of the Crown in tort and to
equate the Crown with a private citizen in matters of torlious liability." D

~rom the above, it would be seen that the Crown in England does not
enjoy absolute immunity and may be held vicariously liable for the tortious
acts of his officers and servants.

The maxim that the "King can do no wrong" on the basis of which E
Common Law rule that "Crown was not answerable for the torts committed
by its servants" was generated, has not been applied here in this country.

India at one time was under the Sovereignty of East India Company
which had two-fold character. They had powers to carry on trade as merchants.
_This was their basic character. They had an additional character. They had F
been delegated by the British Crown powers to acquire, retain and govern
territories, to raise and maintain armies and to make peace and war with native
States. East India Company was subsequently taken over by the Crown and
Govt. of India Act, 1858 was passed by the British Parliament. Section 68 of
the Act allowed the Secretary of the State in Council to sue or be sued G
marking a departure from the common law rule that no proceedings, civil or
criminal, could be filed against the Crown.

In spite of the above provision, the Supreme Court of Calcutta in The
Peninsular & Oriental Steamship Navigation Co. v. The Secretary of State
for India, 1868-69 Bombay H.C. Reports Vol. V. Appendix-A P.l held that the H
1326 SUPREME COURT REPORTS (1999] 3 S.C.R.

A rule of immunity was applied by drawing a distinction by the acts done by
the public servants in the delegated exercise of sovereign powers an<,i acts
done by them in the conduct of other activities. Peacock, CJ, who delivered
the judgment observed :

"It is clear that the East India Company would not have been liable
B for any act done by any of its officers or soldiers in carrying on
hostilities, or for the act of an of its naval officers in seizing as prize
property of a subject, under the supposition that it was the property.
of an enemey, nor for any act done by a military or naval officer or
by any soldier or sailor, whilst engaged in military or naval duty, nor
for any acts of any of its officers or servants in the exercise of judicial
c functions."

This decision was followed by the Calcutta High Court in Nolfin Chunder
Dey v. Secretary of State for India, ILR (1875-76) I Cal. 11, but the Madras
High Court in Secretary of State for Indian Council v. Hari Bhanji & Anr.
D ILR (1882) 5 Mad. 273 and the Bombay High Court in P. V. Rao v. Khushaldas
S. Advani, (1949) 51 Bombay Law Reporter 342 = AIR 1949 Bombay 277 did
not follow the decision. The decision of the Bombay High Court was
subsequently approved by this Court in Province of Bombay v. K.S. Advani,
[1950JSCR 621 =AIR (1950) SC 222 and it was clearly laid down that the Govt.
would also be liable for Torts committed in exercise of Sovereign powers
E except when the act complained of amounted to an act of State.

Govt. of India Act, 1858 was replaced by the Govt. of India Act, 1915
and the provisions contained in Section 65 of 1858 Act were retained in
Section 32 of the 1915 Act. This Act was subsequently replaced by the Govt.
of India Act, 1935 and in this Act the corresponding provision was made in
F Section 176(1). This provision was continued in the Constitution by Article
300 (I) which reads as under :

"The Government of India may sue or be sued by the name of the
Union of India and the Government of a State may sue or be sued by
the name of the State and may, subject to any provisions which may
G
be made by an Act of Parliament or of the legislature of such State
enacted by virtue of powers conferred by this Constitution, sue or be
sued in relation to their respective affairs in the like cases as the
Dominion of India and the corresponding Provinces or the _.
corresponding Indian States might have sued or been sued if this
H Constitution had not been enacted."
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. (S. SAGHIR AHMAD, J.] 1327
The decision of this Court in Province of Bombay v. K.S. Advani, A
(supra) was followed by the First Report of the Law Commission of India in
1956 which accepted the view of this Court and recommended as under :

"In the context of a welfare State it is necessary to establish a just
relation between the rights of the individual and the responsibilities
of the State. While the responsibilities of the State have increased, the B
increase in its activities has led to a greater impact on the citizen. For
the estabishment of a just economic order industries are nationalised.
Public utilities are taken over by the State. The State has launched
huge irrigation and flood control schemes. The production of electricity
has practically become a Government concern. The State has C
established and intends to establish big factories and manage them.
The State carries on works departmentally. The doctrine of laissez
faire - which leaves every one to look after himself to his best advantage
has yielded place to the ideal of a welfare State - which implies tha:t
the State takes care of those who are unable to help themselves."
D
The Commission after referring to various provisions in the legislation
of other countries also observed:

"The old distinction between sovereign and non-sovereign functions

- or governmental and non-governmental functions should no longer
be invoked to determine the liability of the State. As Professor
Friendman observes:
E

'It is now increasingly necessary to abandon the lingering fiction of
a legally indivisible State, and of a feudal conception of the Crown,
and to substitute for it the principle of legal liability where the State,
either directly or through incorporated public authorities engages in F
activities of a commercial, industrial or managerial character. The proper
test is not an impracticable distinction between governmental and
non-governmental functions, but the nature and form of the activitiy
in question.'

In State ofRajasthan v. Mst. Vidhyawati, AIR (1962) SC 933, a claim for G
damage~ was made by the dependants of a person who died in an accident
caused by the negligence of the driver of a jeep maintained by the Govt. for
official use of the Collector ofUdaipur while it was being brought back from'
the workshop after repairs. The Rajasthan High Court held that the State was
liable. This view was upheld by this Court with the observation that : H
1328 SUPREME COURT REPORTS [1999]3 S.C.R.

A "The immunity of the Crown in the United Kingdom was based on the
old feudalistic notions of justice, namely, that the King was incapable
of doing a wrong, and, therefore, of authorising or instigating one,
and that he could not be sued in his own courts. In India, ever since
the time of the East India Company, the Sovereign has been held liable
to be sued in tort or in contract and the common law immunity never
B operated in India. Now that we have, by our Constitution, established
a Republican form of Government, and one of the objectives is to
establish a socialistic State with its varied industrial and other
activities, employing a large army of servants, there is no justification,
in principle or in public interest, that the State should not be held
c liable vicariously for the tortious act of its servant."

The course of justice, insofar as the tortious liability of the State ~s
concerned, was disturbed by the decision of this Court in Kasturi Lal Ralia
Ram Jain v. State of U.P. AIR (1965) SC 1039 = [1965] 1 SCR 375, in which
a partner ofKasturilal Ralia Ram Jain, a firm of jewellers of Amritsar, had gone
D to Meerut for selling gold and silver, but was taken into custody by the police
on the suspicion of possessing stolen property. He was released the next day,
but the ·property which was recovered from his possession could not be
returned to him in its entirity inasmuch as the silver was returned but the gold
could not be returned as the Head Constable in charge of the Malkhana
E misappropriated it and fled to Pakistan. The firm filed a suit against the State
of U .P. for the return of the ornaments and in the alternative for compensation.
This Court, speaking through Gajendragadkar, CJ, observed as under :

"The act of negligence was committed by police officers while dealing
with the property of Ralia Ram which they had seized in the exercise .
of their statutory powers. Now, the power to arrest a person, to search
F
him, and to seize property found with him, are powers conferred on
the specified officers by statute and in the last analysis, they are
powers which can be properly characterised as sovereign powers, and
so, there is no difficulty in holding that the act which gave rise to the
present claim for damages has been committed by the employees of
G the ·respondent during the course of their employment; but the
employment in question being of the category which can claim the
special characteristic of sovereign power, the claim cannot be
sustained."
The earlier decision of this Court in Mst. Vidyavati's case (supra) was
H distinguished on the ground that it was based on a tortious liability not
COM\10N CAUSE, A REGTD. SOCIETY v. U.O.I. [S. SAGHIR AHMAD, J.] 1329

- arising i10rn the exercise of Sovereign power. The decision in Kasturilal's A
case (supra), has, apart from being criticised (See: Constitutional Law oflndia
by Seervai), not been followed by this Court in subsequent decisions and,
therefore, much of its efficacy as a binding precedent has been eroded.
Reference in this connection may be made to the decisions of this Court in
State of Gujarat v. Memon Mahomed Haji Hasan, AIR (1967) SC 1885 and B
Smt. Basava Kom Dyamogouda Patil v. State ofMysore, AIR (1977) SC 1749
and a number of other cases, including those dealt with under Article 32 of
the Constitution by this Court in all of which compensation and .damages
were awarded to the petitioner for tortious liability of the servants of the
State. These cases, namely, Rudul Shah v. State of Bihar, (supra); Bhim
Singh v. State of J&K, (supra), SAHELI, a Woman's Resources Centre v. C
Commr. of Police, Delhi, (supra); People's Union of Democratic Rights v.
Police Commissioner, Delhi (supra) and Sebastin M Hongray v. Union of
India, [ 1984] 3 SCC 82 = AIR ( 1984) SC 1026, do not refer to the decision of
this Court in Kasturilal's case (supra). It may be mentioned that in Kastutilal's
case, the Court did not consider the State liability for violation of Fundamental D
Rights of a citizen relating to Life and Personal Liberty. It will be seen that
where on account of tortious act of the servant of a State, a person's
Fundamental Right to Life and Liberty was violated, the Court granted damages
and compensation to that person. The liability is based on the provisions of

- the Constitution and is a new liability which is not hedged in by any limitations
including the doctrine of 'Soverign immunity'. Reference may also be made E
to the decision of Privy Council in Maharaj v. Attorney General of Trinidad
& Tobago, (No.2) (1978) ·2 All ER 670 in which the appellant, who was a
Barrister, was sentenced to 7 days' imprisonment by a Judge of the High
Court, which was set aside by the Privy Council in appeal. The appellant, in
the meantime, applied for redress under Section 6 of the Constitution of F
Trinidad & Tobago on the ground that he was deprived of his liberty without
due process of law as guaranteed to him under Section l of that Constitution.
The claim was dismissed by the High Court, but was upheld by the Privy
Council in appeal. The Privy Council held that Section 6 of the Constitution
impliedly allowed the High Court to award compensation as compensation G
may be the only practicable form of redress in some cases.

The entire case law was reviewed by R.M. Sahai, J. in his illuminating
judgment in N. Nagendra Rao & Co. v. State of A.P., AIR (1994) SC 2663 =
[1994) 6 SCC 205, in which the case ofNeelabati Behera (supra) was followed
and it was observed, inter alia, as under : H
1330 SUPREME COURT REPORTS [1999) 3 S.C.R.

A "But there the immunity ends. No civilised system can pennit an
executive to play with the people of its country and claim that it is
entitled to act in any manner as it is sovereign. The concept of public
interest has changed with structural change in the society. No legal
or political system today can place the State above law as it is unjust
and ,unfair for a citizen to be deprived of his property illegally by
B negligent act of officers of the State without any remedy. From sincerity,
efficiency and dignity of State as a juristic person, propounded in
Nineteenth Century as sound sociological basis for State immunity
the circle has gone round and the emphasis now is more on liberty,
equality and the rule of law. The modem social thinking of progressive
c societies and the judicial approach is to do away with archaic State
protection and place the State or the Government at par with any other
juristic legal entity. Any watertight compartmentalisation of the
functions of the State as "sovereign and non-sovereign or
"governmental or non-governmental" is not sound. It is contrary to
modem jurisprudential thinking. The need of the State to have
D extraordinary powers can9ot be doubted. But with the conceptual
change of statutory power being statutory duty for sake of society
and the people the claim of a common man or ordinary citizen cannot
be thrown out merely because it was done by an officer of the State
even though it was against ~aw and negligently. Needs of the State,
E duty of its officials and right of the citizens are required to be reconciled
· so that the rule Qf law in a welfare State is not shaken. Even in
America where this doctrine of sovereignty found it place either
because of the 'financial instability of the infant American States
rather than to the stability of the doctrine theoretical foundation,' or
because of 'logical and practical ground,' or that 'there could be no
F legal right as against the State which made the law' gradually gave
way to the movement from, 'State irresponsibility to State responsibility.'
In welfare State, functions of the state are not only defence of the
country or administration of justice or maintaining law and order but
it extends to.regulating and controlling the activities of people in
G almost every sphere, educational, commercial, social, economic, political
and even marital. The demarcating line between sovereign and non-
sovereign powers for which no rational basis survives, has largely
disappeared. Therefore, barring functions such as administration of
justice, maintenance of law and order and repression of crime etc.
which are among the primary and inalienable functions of a
H constitutional Government, the State cannot claim any immunity."
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.) 1331

Reference may also be made to the decision of this Court in Shyam A
Sunder v. State of Rajasthan, [1974] I SCC 690 =AIR (1974) SC 890 in which
a truck belonging to Public Works Department was engaged in famine relief
work when an accident occurred because of the negligence of the driver.
When the State was sued for compensation, the defence raised was of
immunity on account of Sovereign function of the State. The plea was rejected B
by this Court which observed that famine relief work was not a Sovereign
function of the State as traditionally understood. What are traditional Sovereign
functions of the State was considered .by this Court in State of Bombay v.
Hospital Mazdoor Sabha, AIR (1960) SC 610 and Corporation of the City of
Nagpur v. Employees Fu/sing Mistry N.H. Majumdar, AIR (1960) SC 675 =
[1960] 2 SCR 942 and in both these decisions, observations of Lord Watson C
in Richard Coomber v. The Justices of the County Berks, (1883-84) 9 AC 61
that traditional Sovereign functions were the making of Jaws, the administration
of justice, the maintenance of order, the repression of crime, carrying on of
war, the making of treaties of peace and other consequential functions, were
approved.
D
For the reasons stated above, we are of the view that the allotment of
petrol outlets by the petitioner cannot be treated as "act of the State" and
the rule of immunity invoked by Mr. Parasaran cannot be accepted.

The next submission of Mr. Parasaran relates to the tort of misfeasance E
in public office which has been held to have been committed by the petitioner
and for which he has been directed to pay Rs.50 lakhs as exemplary damages.
It is contended by Mr.Parasaran that the ingredients of the tort of misfeasance
in public office were not made out; the rule of exemplary damages was not
properly invoked; and in any case, the amount of Rs.50 lakhs was arbitrarily
fixed without there being any rational basis on which it was computed. It was F
also contended that the persons who suffered injury on account of tort of
misfeasance are neither identifiable nor have they been specified and in the
absence of this vital factor, no finding could have been recorded about the
commission of tort of misfeasance. With regard to award of exemplary damages
of Rs.50 lakhs, it is contended that in public law proceedings, namely, in G
proceedings under Article 32 of the Constitution, compensation and damages
are awardable only against the State for violation of Fundamental Rights of
a citizen or person by the servant of the State or for the tortious acts of the
servant of the State resulting in violation of Fundamental Rights, but
compensation or damages cannot be allowed in favour of the State. It is also
contended that the petitioner at the relevant time was the Minister of State H
1332 SUPREME COURT REPORTS (1999) 3 S.C.R.

A for Petroleum in the Central Cabinet and, therefore, the order, directing him
to pay Rs.50 lakhs as exemplary damages to the State is an order to the Govt.
to pay exemplary damages to itself which is not possible under any system
of law and, therefore, wholly erroneous. It is contended that the error being
apparent on the face of the record, the judgment requires to be reviewed.

B We would first consider the meaning and contents of the Tort of
Misfeasance in the public office.

'Tort' has been derived from the Latin word "tortus" which means
"twisted" or '\;rooked". In its original and most general sense, "tort" is a
C wrong. Jowitt's Dictionary of English Law defines Tort as under :

"Tort signifies an act which gives rise to a right of action, being a
wrongful act or injury consisting in the infringement of a right created
otherwise than by a contract. Torts are divisible into three classes,
according as they consist in the infringement of a jus in rem, or in the
breach of a duty imposed by law on a person towards another person,
D or in the breach of a duty imposed by law on a person towards the
public.

E
The first class includes (a) torts to the body of a person, such as
assault, or to his reputation, such as libel, or to his liberty, sue~ as
false imprisonment; (b) torts to real property, such as ouster, trespass,
I
-
nuisance; waste, subtraction, disturbance; (c) torts to personal
property, consisting (i) in the unlawful taking or detaining of or damage
to corporeal personal property or chattels; or (ii) in the infringement
---
of a patent, trade mark, copyright, etc.; (d) slander of title; (e)
deprivation of service and consortium.
F
The second class includes deceit and negligence in the discharge of
a private duty.

The third class includes thos.e cases in which special damage is caused
to an individual by the breach of a duty to the public." Winfield's classic
G definition provides as under:-
"Tortious liability arises from the breach of a duty primarily fixed by
the law; such duty is towards persons generally and its breach is
redressible by an action for unliquidated damages." .. ·,,

H Apart from tort which may be cc.mmitted by a private individual, the
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1333

officers of the Govt. would also be liable in damages for their wrongful acts A
provided the act does not fall within the purview of "act of the State." So also,
the administrative bodies or authorities, which deal in administrative matters </

and take decisions specially for the implementation of the Govt. policies, have
to act fairly and objectively and may in some cases also be required to follow
the principles of natural justice. It is the basic principle of Administrative Law B
that if the authorities are conferred certain power, then that power must be
exercised in good faith and the administrative decision must be made after
taking into account all matters relevant for the exercise of that power. The
authority must not be influenced by irrelevant matters and ifthe order is likely
to prejudicially affect the rights, or, even the reasonable expectation of a
person, the principles of natural justice must be followed and the person likely C
to be affected must be given an opportunity of hearing. Thus, the decision
of an administrative authority can be challenged on the grounds, inter alia,
of illegality, irrationality and procedural impropriety.

In Administrative Law by Sir William Wade, 7th Edn., "misfeasasnce in
public office" has been defined as malicious abuse of power, deliberate mal- D
administration and unlawful acts causing injury. It is further provided in the
·same book that "misfeasance in public office" is the name now given to the
tort of deliberate abuse of power. After considering various decided cases,
Prof. Wade proceeds to say :

"This and other authorities, including the last-mentioned decision of E
·~
the House of Lords, were held to establish that the tort of misfeasance
in public office goes at least to the length of imposing liability on a
... public officer who does an act which to his knowledge amounts to an
abuse of his office and which causes damage."
(Emphasis supplied) F
- Prof. Wade further proceeds to say as under:

"There are now clear indications that the courts will not award damages
against public aut~orities merely because they have made some order
which turns out to be ultra vires, unless there is malice or conscious G
abuse. Where an Australian local authority had passed resolutions
restricting building on a particular site without giving notice and fair
hearing to the landowner and also in conflict with the planning
ordinance, the Privy Council rejected the owner's claim for damages
for depreciation of his land in the interval before the resolutions were
held to be invalid. The well-established tort of misfeasance by a H
1334 SUPREME COURT REPORTS [1999) 3 S.C.R.

A public officer, it. was held, required as a necessary element either
malice or knowledge by the council of the invalidity of its resolutions.
In New Zealand, also a company failed in a claim for damages resulting
from a minister's refusal of permission for it to obtain finance from a
Japanese concern. The minister's refusal was quashed as ultra vires,
but it was held that this alone was not a cause of action. Nor does
B it appear that claims of this kind can be strengthened by pleading
breach of statutory duty.

The Court of Appeal reinforced these decisions in a case of
importance, but since shown to be of doubtful authority, under
European Community law. A ministerial revocation order had prohibited
c the import of turkey meat from France and was held unlawful by th:::
European Court as being in breach of Article 30 of the Treaty of Rome,
which is binding in British law under the European Communities Act
1972. French traders who had suffered losses under the ban then sued
the ministry for damages. On preliminary issues it was held that they
D had no cause of action merely for breach of statutory duty, as already
related. Likewise there was no cause of action merely because the
minister's order was unlawful: it could be quashed or declared
unlawful on judicial review, but there was no remedy in damages.
There would be such a remedy, however, if it could be shown that
the minister had abused his power, well knowing that his order was
E a breach of Article 30 and would injure the plaintiffs' business. It
was alleged that his conscious purpose was to protect English turkey
producers rather than to prevent the spread of disease, and that he
knew that this made his order unlawful. The element of bad faith, or
malic as judges have often called it, seems now to be established as
F the decisive factor."
(Emphasis supplied)

Thereafter, after discussing a number of authorities, Prof. Wade further
says as under :

-G "But the main principles of liability seem now to be emerging clearly.
It can be said that administrative action which is ultra vires but not
actionable merely as a breach of duty will found an action for damages
in any of the following situations:

I. if it involves the commission of a recognised tort such as trespass,
H false imprisonment or negligence;
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.) 1335
2 if it i~ actuated by malice, e.g. personal spite or a desire to injure A
for improper reasons;

3. if the authority knows that it does not possess the power to take
the action in ,question.
I

The decisions suggest that there is. unlikely .to be liability in the B
absence of all these elements, for example where a licensing authority
cancels a licence in good faith but invalidly, perhaps in breach of
natural justice or for irrelevant reasons. Since loss of livelihood by
cancellation of a licence is just as serious an injury as many forms of
trespass or other torts, it may seem illogical and unjust that it should
not be equally actionable; and in obiter dicta in a dissenting judgment C
Denning LJ once suggested that it was. Some cases of this kind may
involve breach of statutory duty, where there is the broad principle
of liability discussed above. But where there is no such breach it
seems probable that public authorities and their officers will be held
to be free from liability so long as they exercise their discretionary D
powers in good faith and with reasonable care. Losses caused by
bona fide but mistaken acts of government may have to be suffered
just as much when they are invalid as when they are valid."

Halsbury's Laws of England, Vol 1(1) 4th Edn. (Reissue), (para 203)
provides as under : E
"Deliberate abuse of public office or authority. Bad faith on the part
of a public officer or authority will result in civil liability where the act
would constitute a tort but for the presence of statutory authorisation,
as Parliament intends statutory powers to be exercised in good faith
and for the purpose for which they were conferred. Proof of improper F
motive is necessary in respect of certain torts and may negative a

. defence of qualified privilege in respect of defamation, but this is not
peculiar to public authorities. There exists an independent tort of
misfeasance by a public officer or authority which consists in the
infliction of loss by the deliberate abuse of a statutory power, or by G
. \.
the usurpation of a power which the officer or authority knows he
does not possess, for example by procuring the making of a compulsory
purchase order, or by refusing, or cancelling or procuring the
cancellation of a licence, from improper motives. However, where there
has been no misfeasance, the fact that a public officer or authority
makes an ultra vires order or invalidly exercises statutory powers will H
1336 SUPREME COURT REPORTS [1999) 3 S.C.&

A not of itself found an action for damages."

de Smith in Judicial Review of Administrative Action, while speaking of
tort. of misfea5ance in public office, says as under :'

"A public authority or person holding a public office m~y be liable for
B the tort of misfeasance in public office where :

(I) there is an exercise or non-exercise of public power, whether •.
common law, statutory or from some other source;
(2) which is either (a) affected by malice towards the plaintiff or (b)
the decision maker knows is unlawful; and
c
(3) the plaintiff is in consequence deprived of a benefit or suffers
other loss."

de Smith further says as under :

"A power is exercised maliciously if its repository is motivated by
personal animosity towards tpose who are directly affected, by its
exercise. Where misfeasance is alleged against a decision-making body,
it is sufficient to show that a majority of its members present had
made the decision with the object of damaging the plaintiff. Often
there may be no direct evidence of the existence of malice, and in
E these circumstances the court may make adverse inferences, e.g. from
the fact that a decision was unreasonable that it could only be
\
explained by the presence of such a motive. A court will not entertain
allegation of bad faith or malice made against the repositry of a power
unless it has been expressly pleaded and properly particularised."

F Reference may also be made to the decision of the High Court of ·

-
Australia in Northern Territory v. Mengel, (69) The Australian Law Journal
527, in which it was observed a5 under:-

"A number of elements must combine to make a P.urported exercise of
administrative power wrongful. The first is that the purported exercise
G of power mu&t be invalid, either because there is no power to be
exercised or because a purported exercise of the power has miscarried
by reason of some matter which warrants judicial review and a setting
aside of the administrative action.' There can be no tortious liability
for an act or omission which is done or made in valid exercise of a
H power. A valid exercise of power by a public officer may inflict on
· COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1337
' ,

another an unintended but foreseeable loss - or even an intended loss A
- but, ifthe exercise of the power is valid; the other's loss is authorised
by the law creating the power. In that case, the conduct of the public
officer does not infringe an interest,whfoh the common law protects.
- Hc~wever, a purported exercise of power is not necessarily wrongful
because it is ultra vires. The history of the tort shows that a public B
r
officer whose action has caused loss and who has acted without
power is not liable for the loss merely by reason of an error in ·
appreciating the power available. Something further is required to
render wrongful an act done in purported exercise of power when the
act is ultfa vires."

With regard to the MENTAL ELEMENT, the High Court of Australia
c
stated as under:-

"The further requirement relates to the state of mind of the public
officer when the relevant act is done or the omission is made. An early
case is Ashby v. White,. in which Ashby complained that the constables D
of the borough in which an election was held had refused to permit
him to vote "fraudulently and maliciously intending to damnify him".
Lord Holt CJ, whose judgment ultimately prevailed in the House of
Lords, held that malice was essential to the action. Malice has been
understood to mean an intention to injure. In this context, the "injury"
intended must be something which the plaintiff would not or might E
not have suffered jfthe power available to the public officer had been
validly exercised. (It is in that sense that I use the term "injury"
hereafter.) In more recent times, the scope of the tort has not been
limited to cases in which a public officer has acted maliciously. It has
now been accepted that if a -public officer engages in conduct in F
purported exercise of a power but with actual knowledge that there is
no power to engage in that conduct, the conduct may amount to an
abuse of office/'

The High Court further observed as under:-
G
"I respectfully agree that the mental element is satisfied either by
malice (in the sense stated) or by knowledge. That is to say, the
mental element is satisfied when the public officer engages in the
impugned conduct with the intention of inflicting injury or with
knowledge that there is no power to engage in that conduct and that
conduct is calculated to produce injury. These are states of mind H
1338 SUPREME COURT REPORTS [1999] 3 S.C.R.

A which are inconsistent with an honest attempt by a public officer to
perfonn the functions of the office. Another state of mind which ,is
inconsistent with an honest attempt to perfonn the functions of a~
public office is reckless indifference as to the availability of power to
support the impugned conduct and as to the injury which the impugned
conduct is calculated to produce. The state of mind relates to the
B character of the conduct in which the public officer is engaged -
whether it is within power and whether it is calculated (that is, naturally
adapted in the circumstances) to produce injury. In my opinion, there
is no additional element which requires the identification of the plaintiff
as a member of a class to whom the public officer owes a particular
c duty though the position of the plaintiff may "be relevant to the
validity of the public officer's conduct. For example, the officer's
administrative act may be invalid because he or she did no treat the
plaintiff with procedural fairness. It is the absence of an honest
attempt to perfonn the functions of the office that constitutes the
abuse of the office. Misfeasance in public office consists of a purported
D exercise of some power or authority b~ a public officer 6therwise than
in an honest attempt to perform the functions of his or her office
whereby loss is caused to a plaintiff. Malice, knowledge and reckless
indifference are states of mind that stamp on a purported but invalid
exercise of power the character of abuse of or misfeasance in public
E office. If the impugned conduct then causes injury, the cause of
action is complete."

In Dunlop v. Woollahra Municipal Council, (1981) 1 All ER 1202 (PC),
it was held that mere invalidity of the order would not give rise to any liability
for payment of damages in an action in tort to the aggrieved party. It was,
F however, held in the same case that if the action of the authorty is actuated
by malice, it would amount to "tort of misfeasance by a public officer. " In
Asoka Kumar Davidv. MA.MMAbdul Cader (1963) 1WLR834 (PC), it was
held that the tort of misfeasance will also be committed even in the absence
of malice if the public officer knew both that what he was doing was invalid
G v.
and that it will injure the plaintiff. (See also: Bourgoin SA & Ors. Ministry
of Agriculture Fisheries & Food, (1985) 3 All ER 585 (CA). In Jones v.
Swansea City Council, (1989) 3 All ER 162 (CA), it was held that ifthe public
officer acts with malice, i.e., with an intent to injure and thereby damage
results, the liability would arise and the officer could be sued for the tort of
misfeasance in public office. The legal propositions in that case were not
H dissented from by the House of Lords, though the Court of Appeal's decision
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1339
was reversed on facts (See: Jones v. Swansea City Council, (1990) 3 All ER A ·
737(HL).

In Three Rivers District Council and Ors. v. Bank of England (No.3),
(1996) 3 All ER 558, it was held that the tort of "misfeasance in public office"
was concerned with a delib,erate and dishonest wrongful abuse of the powers
given to a public officer and the purpose of the tort was to provide B
compensation for those who suffered loss as a result of improper abuse of
power. The conclusions reached in that case were:-

"Issue No.I

Misfeasance in public office C
(I) The tort of misfeasance in public office is concerned with a deliberate
and dishonest wrongful abuse of the powers given to a public officer.
It is not to be equated with torts based on an intention to injure,
although, as suggested by the majority in Nor,/hern Te"itory v Mengel,
(1995) 69 ALJR 527, it has some similarities to them. D
(2) Malice, in the sense of an intention to injure the plaintiff or a
person is a class of which the plaintiff is a member, and knowledge
by the officer both that he has no power to do the act complained of
and that the act will probably injure the plaintiff or a person in a class
of which the plaintiff is a member are alternative, nor cumulative, E
ingredients of the tort. To act with such knowledge is to act in a
sufficent sense maliciously: see Mengel 69 ALJR 527 at 554 per Deane
J.

(3) For the purposes of the requirement that the officer knows that he· F
has no power. fo. do the act complained of, it is sufficient that the
officer has actu~l knowledge that the act was unlawful or, in
circumstances .in ~J\ich he believes or suspects that the act is beyond
his powers, thath~oes not ascertain whether or not that is so or
fails to take such steps as would be taken by an honest and reasonable
man to ascertain the true position. G
(4) For the purposes of the requirement that the officer knows that his
act will probably injure the plaintiff or a person in a· class of which
the plaintiff is a member it is sufficient if the officer has actual
knowledge that his act will probably damage the plaintiff or such a
person or, in circumstance in which he believes or suspects that his H
1340 SUPREME COURT REPORTS (1999] 3 S.C.R.

A act will probably damage the plaintiff or such a person, if he does not
ascertain whether that is so or not or if he fails to make such inquiries
as an honest and reasonable man would make as to the probability
of such damage.

(5) If the states of mind in (3) and (4) do not amount to actual
B knowledge, they amount to recklessness which is sufficent to support
liability under the second limb of the tort.

(6) Where a plaintiff establishes (i) that the defendant intended to
injure the plaintiff or a person in a class of which the plaintiff is a
c member (limb one) or that the defendant knew that he had no power
to do what he did and that the plaintiff or a person in'a class of which
the plaintiff is a member would probably suffer loss or damage (limb
two) and (ii) that the plaintiff has suffered loss as a result, the plaintif
has a sufficient right or interest to maintain an action for misfeasance
in public office at common law. The plaintiff must of course also show
D that the defendant was a public officer or entity and that his loss was
caused by the wrongful act."

·so far as malice is concerned, while actual malice, if proved, would
render the defendant's action both ultra vires and tortious, it would not be
necessary to establish actual malice in every claim for misfeasance in public
E office. In Bourgoin SA v. Ministry of Agriculture, Fisheries & Food, (1985)
3 All ER 585 (CA) to which a reference has already been made above, the
plaintiffs were French turkey farmers who had been banned by the Ministry
from exporting turkeys to England on the ground that they would spread
disease. The Ministry, however, subsequently conceded that the true ground
F was to protect British turkey farmers and that they had committed breach of
Article 30 of the EEC Treaty which prohibited unjustifiable import restrictions.
The defendants denied their liability for misfeasance claiming that they were
not actuated by any intent to injure the plaintiffs but by a need to protect
British interest. It was held by Mann, J., which was upheld by the Court of
G Appea~ that proof of actual malice, ill-will or specific intent to injure is not
essential to the tort. It was enough ifthe plaintiff established that the de.fendant
acted unlawfully in a manner foreseeably injurious to the plaintiff. In another
decision .in Bennett v. Commr. of Police of the Metropolis and others, ( 1995)
2 All ER l (at pages 13 & 14), which was considered in Three Rivers' case
(supra), it was held that the tort of misfeasance in public office required
H express intent to injure.
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1341
Tort of misfeasance in public office was also considered by this Court A
in Lucknow Development Authority v. MK Gupta, (1994] l SCC 243. Relying
_·,upon the Administrative Law by Prof. Wade, exemplary damages were allowed
to a consumer who had initiated proceedings under the Consumer Protection
Act, 1986. The Court held that the officers of the Lucknow Development
Authority were not immune from tortious liability and then proceeded to say B
that the National Consumer Disputes Redressal Commission was not only
entitled to award value of the goods or services but also to compensate a
consumer for injustice suffered by him. The Court, ·therefore, upheld the
award of Rs. I 0,000 as compensation allowed by the Commission on the
ground that the action of the appellant amounted to harassment, mental
torture and agony of the respondent. The Court then proceeded to observe C
as under:-

"But when the sufferance is due to mala fide or oppressive or capricious
.acts etc. of a public servant, then the nature of liability changes. The
Commission under the Act could determine such amount if in its
opinfon the consumer suffered injury due to what is called misfeasance D
of the officers by the English Courts. Even in England where award
of exemplary or aggravated damages for insult etc. to a person has
now been held to be punitive, exception has been carved out if the
injury is due to 'oppressive, arbitrary or unconstitutional action by
servants of the Government' (Salmond and Heuston on the Law of
Torts). Misfeasance in public office is explained by Wade in his book E
on Administrative Law thus :

"Even where there is no ministerial duty as above, and even
where no recognisep tort such as trespass, nuisance, or
negligence is committed, public authorities or officers may be
liable in damages for malicious, deliberate or injurious wrong- F
doing. There is thps a tort which has been called misfeasance
in public office, apd which includes malicious abuse of power,
deliberate maladtbinistration, and perhaps also other unlawful
acts causing injury." (Emphasis supplied)

After quoting from Wade, the Court proceeded to consider the question
G
of award of exemplary da.,iages in the light of the decision in Cassell & Co. .
Ltd v. Broome & Anr. (1972) I All ER 80 I, as also the earlier decision in
/lookes v. Barnard, (l 964) I All ER 367, and other English decision including
Ashby v. White (1703) 2 Ld Raym 938, and held that exemplary dam.ages could
be awarded against the officers of the Lucknow Development Authority. H
1342 SUPREME COURT REPORTS [1999} 3 S.C.R.

A The decision in the Lucknow Development Authority's case (supra) ,has
been followed by this Court in the Judgment under Review and a notice was ,
issued to the petitioner to show cause why should he not be made liable to
..
pay damages for his ma/a fide. action in allotting petrol pumps to the persons
concerned. This notice .was issued because the Court was of the opinion:
,

B "Public servants may be liable in damages for malicious, deliberate or
injurious wrongdoing. According to Wade :

'There is, thus, a tort which has been called misfeasance in
public office and which includes malicious abuse of power,
deliberate maladministration, and perhaps also other unlawful
C acts causing injury.'
With the change in socio-economic outlook, the public servants are
being entrusted with more and more discretionary powers even in the
field of distribution of government wealth in various forms. We take
it to be perfectly clear, that if a public servant abuses his office either
D by an act of omission or commission,. and the consequence of that is
injury to an individual or loss of public property, an action may be
maintained against such public servant. No public servant can say
"you may set aside an order on the ground of mala fide but you
cannot hold me personally liable." No public servant can arrogate to
E himself the power to act in a manner which is arbitrary."

The order regarding notice to the petitioner was preceded by the finding
that:

"He made allotments in favour of relations of his personal staff under
the influence of the staff on wholly extraneous considerations. The
F allotments to the sons. of the Ministers were only to oblige the
Ministers. The allotments to the members of the Oil Selection Boards
and their/chairmen's relations have been done to influence them and

G
to have favours from them. All these allotments are wholly arbitrary,
nepotistic and are motivated by extraneous considerations." -
The further fmding is to the following effect :
.,- "
"A Minister who is the executive head of the department concerned
distributes these benefits and largesses. He is elected by the people
and is elevated to a position where he holds a trust on behalf of the
H people. He has to deal with the people's property in a f~ir and just
CQMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.) 1343
manner. He cannot commit breach of the trust reposed in him by the A
people. We have no hesitation in holding that Capt. Satish Sharma in.1
- his capacity as a Minister for Petroleum and Natural Gas deliberately
acted in a wholly arbitrary and unjust manner. We have no doubt in
·~
our mind that Capt Satish Sharma knew that the allottees were relations
of his personal staff, sons of Ministers, sons/relations of Chairmen
and members of the Oil Selection Boards and the members of the Oil
B
Selection Boards themselves. The allotments made by him were wholly
ma/a fide and as such cannot be sustained."

The Court further found as under :

"We are further of the view that Capt. Satish Sharma acted in a whollyc
biased manner inasmuch as he unfairly regarded with favour the cases
of 15 allottees before him. The relevant circumstances available from
record and discussed by us leave no manner of doubt in our mind that
Capt. Satish Sharma deliberately acted in a biased manner to favour
these allottees and as such the allotment orders are wholly vitiated D
and are liable to be set aside."

The Court also found :

"The orders of the Minister reproduced above read: "the applicant
has no regular income to support herself and her family", "the applicant
E
is an educated lady and belongs to Scheduled Tribe community", "the
applicant is unemployed and has no regular source of income", "the
-~
applicant is an uneducated, unemployed Scheduled Tribe youth
without regular source of livelihood", "the applicant is a housewife
whose family is facing difficult financial circumstances" etc.etc. There
would be literally millions of people in the country having these F
circumstances or worse. There is no justification whatsoever to pick
up these persons except that they happen to have won the favour of
the Minister on ma/a fide considerations. None of these cases fall
within the categories placed before this Court in Centre for Public
Interest Litigation v. Union of India but even if we assume for
argument sake that these cases fall in some of those or similar
G
"""'"- guidelines the exercise of discretion was wholly arbitrary. Such a
discretionary power which is capable of being exercised arbitrarily is
not permitted by Article 14 of the Constitution of India. WhiJe Article
14 permits a reasonable classification having a rational nexus to the
objective sought· to be achieved, it does not permit the power to pick H
1344 SUPREME COURT REPORTS (1999] 3 S.C.R.

A and choose arbitrarily out of several persons falling in the same
category."

In response to the notice issued by the Court, the petitioner filed his
reply in which he, inter alia, stated as under :

B '"I. Captain Satish Shanna was Minister of State for Petroleum from
January 8,1993 to May 16, 1996. The allotments 9f petrol pumps by
the Minister from his discretionary quota (that ultimately came to be
challenged in Writ Petition (Civil) No. 26of1995 on the basis of the
August 11, 1995 news item in the Indian Express) related to the period
1993 to 1995.
c 2. It is submitted with utmost respect that the finding of the malafides
have been recorded in proceeding to which I was not a party. These
proceedings were defended by the Central Government. In a non-
adversarial manner by placing all the facts before this Hon'ble Court
and leaving it to this Hon'ble Court to adjudicate on the validity of
D the said actions. It is true that an opportunity to file an affidavit wa8
given to me, if I so desired. It is, however, submitted that that
opportunity was given in the context of deciding the Writ Petition
which challenged the validity and correctness of the allotments. There
was no prayer in the Writ Petition making any personal claim against
me either civil or criminal and the entire record of the case was placed
E
before this Hon'ble Court. In addition, affidavits were filed by
responsible officers of the Departrllent, therefore, I did not avail the
option to file any affidavit. The respondent was ready and willing to
leave the question of validity of the allotments made by him to be
determined by this Hon'ble Court on the basis of the entire record. At
F that stage, I had no notice that any relief was claimed against me
personally by any one or that I would be called upon to face civil or
criminal proceedings.
I respectfully state that in the matter of discretionary allotments
based on Compassionate grounds, individual assessment and
G perception are bound to differ from person to -person. There is no
material to suggest that I made any allotments for any pecuniary
advantage or illegal gain. Thus, I submit that before deciding on my
personal liability to pay compensation or face criminal trial, I should
be permitted to place my version of the facts and circumstances.

H The legal issue of the personal liability of Ministers arising out
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1345
of abuse of executive powers under the Rules of Business in A
contradistinction to statutory powers conferred upon designated
.. functionaries involves important questions impinging on the
interpretation of the constitution. I respectfully state that this matter
should be dealt with by this Hon'ble Court under Article 145 (3).

3. The principal flaw found in all these allotments is that the procedure B
of receiving such applications for discretionary quota was an
institutionalised one and lacked transparency. The lack of
institutionalisation of procedures for discretionary quotas has been in
existence since 1982 and I state that it is not suggested that I flouted
any criteria or guideline. I merely followed the existing established
·practice in dealing with the applications for discretionary quota C
following the precedents set by a host of my predecessors belonging
to different political parties. I state that while the Hon'ble Court may
,..have found this manner of working incompatible with Article 14 it
cannot be suggested that I wilfully and deliberately evolved a
procedure which was found to be illegal. Thus I submit that I did not D
personally violate any law, rule or guideline in the manner so as to
expose me to a personal liability, civil or criminal. The substantial
question of law as to interpretation of the Constitution was and
continues to be whether arbitrariness or even malice in law in the
exercise of power on a long-standing policy handled by the
administrative team can be fastened on to the elected person appointed E
as Minister by the President on the advice of the Prime Minister.

4. The judgment relies on observations in Lucknow Development
Authority v. MK Gupta, [1994] l SCC 243] for holding that misfeasance
in public offices is a part of the law of tort. It is submitted that the F
Lucknow Development Authority case arose under the Consumer
Protection Act wherein there was a specific aggrieved/injured party,
who claimed of injury/loss caused to him. In the instant case, the
question of damages does not arise at all, since there is no fmding
that I acted to the prejudice or detriment of any specific person in
derogation of my statutory (or constitutional) rights or in violation of G
any law, rule or even guideline.

5. As far as the proposed directiO!t ~9 the police authorities is
concerned, it is respectfully submitted that :

(a) No offence u/s 405 or 406 of the IPC has been made out. H
1346 SUPREME COURT REPORTS [1999) 3 S.C.R.

A (b) Any direction, basetl on these facts, and expressing a prime-
•' facie satisfaction of this Hon'ble Court that any criminal offence
~
has been committed would be violative of Article 21 of the
constitution~ and

(c) Any adjudication, even in to the existence of a prima-facie case
B by this Hon'ble Court would necessarily introduce disclosure by
the answering deponent of defence he may have in the trial
which may ensue - which procedure would be violative of Article
21."

The Court by its judgment dated 4.11.1996 disposed of the matter as
c follows:
"3. Pursuant to the above-quoted direction, a show- cause notice
was issued to Capt. Satish Sharma. He has filed affidavit in reply to
the show-cause notice..
4. We have heard Mr. Salve, learned ~ounsel appearing for Capt.
D Satish Sharma. There are two parts of the directions quoted above.
This Court has called upon Capt. Satish Sharma to show cause why
a direction be not issued to·the appropriate police authority to register
a case and initiate prosecution against him for criminal breach of trust
or any other offence under law.
E
5. The findings of this Court,. quoted above, and the conclusions
reached in the Common Cause case, leave no manner of doubt that
an investigation by an independent authority is called for in this case. "'\..

We, therefore, direct the Central Bureau of Investigation (CBI) to
register a case against Capt. Satish Sharma in respect of the allegation
F dealt with and the findings reached by this Court in the Common
Cause case. The CBI shall hold investigation and proceed in
accordance with law. There shall be no limit on the power, scope and
sphere of investigation by the CBI. We, however, make it clear that
the CBI shall not be influenced by any observations made by this
Court or the findings reached in Common Cause case, for reaching the
G conclusion as to whether any prima facie case for prosecution/trial
is made out against Capt. Satish Sharma. It shall have to be decided
on the basis of the material collected and made available with the CBI
... ,,..
as a result of the investigation. We direct the CBI to complete the
investigation within three months of the receipt of this order. The CBI
H shall file interim report to indicate the compliance of this order. This
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIRAHMAD, J.] 1347
shall be done by 20-1-1997 and this matter shall be listed on 22-1-1997 A
before a Bench of which Mr. Justice Faizan Uddin is a member."

Thereafter the Court proceeded to hear Mr. Harish N. Salve on the
question of damages and after considering certain English decisions on the
question of exemplary damages and also the decision of thisfit>urt in Neelabati
Behera v. State of Orissa, [1993] 2 sec 746, in which it was laid down that B
the damages can be awarded by this Court in a proceeding under Article 32
of the Constitution, the Court directed the petitioner to pay a sum of Rs.50
lakhs as exemplary damages to the Government Exchequer, with the observation
that since the property with which the petitioner was dealing was Govt.
propertyfu, the d~ovt., dwhhich i~ '.'By the dpeopl~",hhas to be compensated. The C
Court rther irecte t e pet1t1oner to epos1t t e amount with the Secretary,
Ministry of Finance, Govt. of India within nine months. It was further provided
that the amount, if not paid, would be recoverable as arrears of land revenue.

As Minister of State for Petroleum, the petitioner had made allotments
from out of his discretionary quota. The discretionary quota is available to D
almost all Ministers of the Govt. oflndia. This obviously is based on a policy
decision to allow discretionary quota not only to the Prime Minister but also

- to other Ministers so that serious difficulties, problems of disabilities or
unemployment may be overcome at the earliest by·providing immediate help.

The Constitution through its various provisions, including Directive . E

- Principles of State Policy has laid down the bac;ic principles of governance.
· Socio-economic growth, aid to the poor, upliftment of the down trodden, the
Backward masses and Weaker sections of the society are some of the rules
of governance embodied in the Constitution. The philosophy behind the
"discretionary quota" available to the Prime Minister and other Minister or
p·
Members of Parliament appears to be to provide immediate relief in a case of
acute personal hardship.

The list of discretionary quotas available with the Prime Minister and
other Ministers has been placed before us and is set out below:

"DETAILS OF DISCRETIONARY ALLOTMENTS BEING EXERCISED G
BY VARIOUS MINISTERS IN GOVERNMENT OF INDIA

UNION MINISTERS

1. Prime Minister :
Directives being sent to various Ministries for deserving cases H
1348 SUPREME COURT REPORTS [1999] 3 S.C.R.

.A of Discretionary allotments, for out of turn House/DOA Flat/
Shops/Petrol Pump/Gas Agencies/Rly Station Stalls/Free Air
Tickets/out of tum Maruti Car, STD/ISO Booth/Out of Tum
Telephone Connections/Gas Connections etc. PM exercises
discretion to sanction funds from PM's Relief Fund.
B 2. Minister for Communications
Discretionary Allotments of :
I. Telephone connections.

2 Small Telephone Exchanges.
C 3. ISO/STD Booths.
3. Minister for Civil Aviation & Tourism
Discretionary Allotment of :
1. Free or Discounted International Air Tickets.
D 2 GSAs for AI or Indian Airlines

3. Out of Tum seats in IA/AI flights.
4. Shops/Stalls in ITDC Hotels.
4. Minister for Chemical & Fertilizers
E
Discretionary Allotme~t of :
I. Agencies of IPCL/Public Sector Drug Units.
2 Agencies for Fertilizer Public Sector Undertakings.
5. Minister for Coal
F
Discretionary Allotment of :
1. Premium quality coal rakes.
2 PSU Coal Dumps

G 3. Premium quality coal in thousand tons.

6. Minister for Defence
Discretionary Allotments of :

l. Fire Arms, Rifles & Revolvers.

H 2 Old Army Vehicles meant for disposal.
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1349
7. Ministry of HRD A
Discretionary Powers of :

1. Admissions in Medical/Engg. Colleges/Central Schools.

2 Scholarships for study in India & Abroad.
B
8. Minister for Health & Family Welfare
Discretionary Powers of :

I. Treatment of Patients abroad.

2 Private wards in AIIMS/Premier Govt. Hospitals.
c
3. Admission in Medical Colleges in India/Abroad.
9. Minister for Information & Broadcasting
Discretionary Powers of :

l. Selection of DD Serials/other programmes. D
2 Nomination to film censor boards etc.

.. 10. Minister for Industry
Discretionary Allotments of :
E
l. Maruti Cars/other cars
~

11. Minister for Food & Civil Supplies/Food Processing
Discretionary Allotments of :

I. Ration shops. F
2 SKO/LDO Agencies.

3. Allotment of FCI wheat/Rice/Sugar to Pvt. Industries.

4. Beer Licences.
G
4 12. .Minister for Petroleum & Natural. Gas
Discretionary Allotments of :

l. Gas Connections.

2 Petrol Pumps & Gas Agencies. H
1350 SUPREME COURT REPORTS (1999] 3, S.C.R.

A 13. Minister for Railways
Discretionary Allotments of :
•
1. Kiosks/Stalls at Railway Stations.

2 Free or discounted Railway passes/ Tickets for I year or more
B years.
'
3. Berths in all trains.

4. Railway Rakes.·

14. Minister for Surface Transport
c
Discretionary Powers of :

I. Out of tum Berthing of National & International Ships at all
Ports across country.

2 Permits for Buses etc.
D
15. Minister for Urban Developments
Discretionary Allotment of :

I. DDA Flats/Houses.

E 2 Shops in DDA/NDMC
_,
3. Plots in DDA.

MEMBERS OF PARLIAMENT

I. 100 Gas Connections for Discretionary Allotments.
F
2 15 Telephone Connections for Discretionary Allotments."

The above list will show that not only to the Minister of Petroleum, but
beginning from the Prime Minister, down to other Ministers, including Members
of Parliament, a discretionary quota has been made available to them.
G So far as the Minister of Petroluem is concerned, the allotments made
by the petitioner were challenged in this Court in Centre for Public Interest •
Litigati<?n v. Union of India & Ors., (Writ Petition (C) No. 886 of 1993,
decided on March 31, 1995) [since reported in [1995] Supp.3 SCC 382], but
the Court did not set aside or quash any of the allotments and instead framed
H guidelines for the exercise of discretionary allotment of petroleum products' ~
'\
'
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1351
agencies. These guidelines were settled with the assistance of the Attorney A
General who submitted a draft of the proposed guidelnes. After considering
the guidelines, the Court directed as under:

"The following to be inserted in the brochure of guidelines for selection
of dealers through the Oil Selection Board:
B
Discretionary Quota

A discretionary quota will be earmarked for deserving cases on genuine
compassionate grounds. This quota will be outside the 100 point
roster of marketing plans and outside the purview of the Oil Selection
~~. c
Candidates will submit a proper application to the Ministry, giving
their complete bio-data indicating the name of spouse/father,
occupation, permanent address, annual income for the preceding year
in respect of self, spouse and parents from all sources enclosing
documentary evidence wherever necessary in support of their request D
and an affidavit verifying the given facts.

Discretionary allotment will be made to a candidate only if he is a
citizen of India. If he/she or any of his/her following close relatives
(including step relatives) does not already hold a dealership of
petroleum products of any oil company: E
(i) spouse
(it) father/mother
(iii) brother

(iv) son/daughter-in-law." F
Then the r:ourt directed as under :

"The above-quoted norms/guidelines etc. ·shall be followed by the
Central Government in making all such discretionary allotments of
retail outlets for petroleum products, LPG Dealership and SKO G
Dealership, hereafter. A copy of this order be provided to every oil
company by the Central Government for general information."
i
We have not r~produced the general guidelines or general conditions
or, for that matter, the procedure fixed by the Court for allotment of petrol
outlets, but have reproduced only that portion which has been considered H
1352 SUPREME COURT REPORTS [1999] 3 S.C.R.

A necessary by us for disposal of this case as they relate to discretionary quota. .. .!.'

It is contended that since the allotments made by the petitioner till the
filing of the writ petition in this Court, iii spite of a challenge having been
raised therein, were not set aside and only guidelines were settled for future
-
exercise of discretionary quota, tacit stamp of judicial approval shall be
B deemed to have been placed on the allotments made by the petitioner and
consequently those allotments could not have been reopened on the principle
of constructive res judicata. Normally, we would have accepted this argument,
-
but in this case we cannot go to that extent. We have already stated in the
beginning that the judgment of the Court, in sofar as it purports to set aside
c the 15 allotments made by the petitioner, will not be reviewed by us as the
review applications filed by the allottees have already been rejected. We,
therefore, cannot entertain any plea which even indirectly aims at setting ·
aside the judgment under review on that question.

Significantly, it is not even suggested that the guidelines issued by the
D Court in, [1995] Supp. 3 SCC 382 were violated in any subsequent allotment
· or that allotments were made in excess of the quota after that judgment.

In a case relating to manufacturer's discretionary quota concerning
Maruti-800, this Court had to intervene. The then Attorney General who
happened to be none other than Mr. K.Parasaran, arguing before us as Senior
E Counsel today, was requested by the Court to provide the draft guidelines
which was done and the guidelines were approved by the Court and the Court _.ft-

fixed the guidelines for the exercise of manufacturer's five per cent discretionary
quota concerning allotment of 'Maruti 800' cars. (See: Ashok K. Mittal v.
Maruti Udyog Ltd.& Anr., [1986] l SCR 585. While conceding discretionary
quota to the manufacturers, the Court fixed the guideJines for regulating the
F allotments of Maruti cars out of discretionary quota to various customers
falling in the category of Defence Forces, Judiciary, Constitutional Heads,
MPs, etc.

Mr. Gopal Subramaniam, learned Senior Counsel, appearing as Amicus
Curiae in the case and who, we must record, equally matched the forensic skill
G

-
of Mr. K. Parasaran and rendered invaluable assistance to us, contended that
a.
it was not merely a matter of discretionary quota which was the basis of the
judgment under review, but the arbitrary manner, in which the discretion was
exercised, which ultimately resulted in the quashing of all the allotments made
by the petitioner who was found to have allotted the petrol pumps not only
H to the relatives of his personal staff, but also to the sons of Chairmen of Oil
'
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1353
~... Selection Boards and even to the members of the Oil Selection Boards and, A
therefore, the Court had rightly held the exercise of discretion to be motivated,
arbitrary and for extraneous considerations. Since this question again turns
on the merit of the allotments made by the petitioner, we would not look into
it. We have mentioned the philosophy of discretionary quota being made
available to the Ministers, only as a prelude to our decision on the question B
whether on the facts of this case the petitioner could be held to. have
committed the tort of misfeasance in public office. The basis of the finding
recorded in the impugned judgment on this questi~n is the decision of this
Court in Lucknow Development Authority's case (supra) which did not consider
even the basic elements which constitute the tort of misfeasance which we
have already discussed above. c
The whole proceedings were initiated on the basis of a Press report
which was brought to the notice of the Court by Mr. H.D.Shourie, Director,
Common Cause whose Writ Petition was already pending and it was on that
basis in that pending Writ Petition that the Court took cognizance of the
matter. The allotments were made by the petitioner in his capacity as Minister D
.of State for Petroleum and Natural Gas as and when an application was made
by separate and individual persons. There was none to compete with that
person. The individual concerned would approach the petitioner and the
petitioner, perhaps, on being satisfied with the contents of the application, as
also the need for a Retrol outlet in the area, make the allotment. Had there E
been any other appli@ant for the same petrol outlet for which an application
was made to the Minister, the question that he deliberately made the allotment
in favour of one so as to injure the other person would then have positively
arisen. The petitioner cannot be said to have made the allotment in favour of
one out of malice towards the other as there was none else to contest or
compete with the claim of the person who made the application for allotment. F
Nor could it be said that the petitioner made the allotment of petrol outlet. in
favour of the applicant with the knowledge that such allotment was likely to
injure the interest of any other person.

The petitioner before the Court was "Common Cause". It was a registered G
Society. It was not one of the applicants for allotment of petrol outlet. Had
the "Common Cause" approached the Civil Court for damages on account of
tort of misfeasance in public office, its suit would have been dismissed on
the ground that it was not one of the applicants for a petrol outlet; its own
interest was not injured in any way nor had the petitioner made allotment in
favour of one of the applicants maliciously or with the knowledge that the H
1354 SUPREME COURT REPORTS (1999] 3 S.C.R.

A allotment would ultimately hann the "Common Cause"; How could the~ a
finding of commission of misfeasance in public office by the petitioner /be
recorded in proceedings tinder Article 32 and that too, at the instance of
-"Common Cause" on the basis of a Press report? Mr. Gopal Subramaniam
contended that "Common Cause" was justified in filing the petition under
Article .32 in Public Interest to expose the wanton way in which allotments
B were made by the petitioner. To that extent, Mr.Gopal Subramaniam is right.
The Court has already quashed the fifteen allotments made by the petitioner
in view of the arbitrary exercise of power by him. But the Court went a step
further and held that petitioner had committed the Tort of Misfeasance in
Public Office and awarded exemplary damages. It is this aspect which we are
C examining and it is in this context that we say that "Common Cause" not
being an applicant for allotment of a Petrol outlet could not have obtained
a finding in the Civil Suit that the petitioner had committed the Tort of
Misfeasance in Public Office.

Having regard to the definition of tort of misfeasance in public office
D as discussed above and having. regar_d to the ingredients of that tort, it is_
obvious that there has to be an identifiable plaintiff or claimant whose interest
was damaged by the public officer maliciously or with the knowledge that the
impugned action was likely to injure the interest of that person. It is in favour
of that specific identifiable plaintiff or claimant that the relief could have been
E granted and damages awarded to him as the whole gam~t of the Law of Tort
is compensatory in nature and damages are awarded to compensate the
losses caused on account of violation of the interest of one person by
another. In other words, obtaining compensation for a tortiously inflicted loss
is generally perceived as the aim of the law of tort by the plaintiff. Judgment
in favour of the plaintiff can be given and the loss suffered by him can be
F redressed only when a finding of a breach of an obligation by the tort-feasor
is recorded. It is the compensatory function of tort which is invoked by the . .,
plaintiff in a Court and unless there is an identifiable plall).tiff, there cannot
be any order for compensation or damages to redress the loss caused to that
plaintiff.

G Mere allotment of Petrol outlets would not constitute ;'Misfeasance"
unless other essential elements were present. These allotments have already
been quashed as having been arbitrarily made and we appreciate the efforts
of "Common Cause" for having caused this exposure. But the matter must end
here.

H It cannot be ignored that the allotments made by the petitioner under
'
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1355
the discretionary quota were challenged in this Court but the Court did not A
interfere with those allotments and instead settled the guidelines for future
allotments. It is not alleged nor has it been found that any allotment was made
in violation of the guidelines. It cannot also be ignored that the ·petitioner is
not alleged to have intereferred with any allotment made through the Oil
Selection Boards or the process of selection carried out by the Boards.
B
At this stage, Mr. Gopal Subramaniam drew our attention to the following
passage from the judgment under review ·:

"The orders of the Minister reproduced above read: "the applicant
has no regular income to support herself and her family", "the applicant
is an educated lady and belongs to Scheduled Tribe community", "the C
applicant is an uneducated, unemployed Scheduled Tribe youth
without regular source of livelihood", "the applicant is a housewife
whose family is facing difficult financial circumstances" etc. etc. There
would be literally millions of people in the country having these
circumstances or worse. There is no justification whatsoever to pick D
up these persons except that they happen to have won the favour of
the Minister on mala fide considerations. None of these cases fall
within the categories placed before this Court in Centre for Public
Interest Litigation v. Union of India but even if we assume for
argument sake that these cases fall in some of those or similar
guidelines the exercise of discretion was wholly arbitrary. Such a E
discretionary power which is capable of being exercised arbitrarily is
not permitted by Article 14 of the Constitution of India. While Article
14 permits a reasonable classification having a rational nexus to the
objective sought to be achieved, it does not permit the power to pick
and choose arbitrarily out of several persons falling in the same F
category."

and contended that the Court itself had in mind that there were others
equally eligible to whom the Petrol outlets could have been allotted. He
specially drew our attention to the portion underlined above. It is true that
there are millions of poor, unemployed, educated or uneducated young men, G
who might have deserved preferential treatment, but all of them had not
approached the petitioner nor the petitioner was expected to know all of them
personally. If an advertisement were to be issued and applications were to be
invited for allotment of Petrol outlets on the basis of auction, it would still
not have been possible for the millions of poor or unemployed persons to
have applied for allotment or to participate in the bid. Auction is usually held H
1356 SUPREME COURT REPORTS [1999] 3 S.C.R.

A to augment the revenue. Physically handicapped, poor, unemployed, illiteQ!te
youth cannot be expected to participate in the auction and offer their bids.
Moreover, this would be contrary to the concept of discretionary quota, the
main purpose of which is to provide immediate relief to the most needy. Even .,
the guidelines settled by this Court do not provide for allotment being made
B by public auction.

In view of the above, the conduct of the petitioner in making allotments
of petrol outlets was atrocious, specially those rµade in favour of the Members,
Oil Selection Board or their son, etc., and reflects a: wanton exercise of power

C
by the petitioner. This Court has already used judicial vituperatives in respect
of such allotments and we need not strain our vocabulary any further in that
regard. Suffice it to say that though the conduct of the petitioner was wholly
unjustified, it falls short of "misfeasance in public office" which is a specific
-
tort and the ingredients of that tort are not wholly met in the case. That being
so, there was no occasion to award exemplary damages.

D Since exemplary damages have been awarded, we would, in spite of our
finding that the petitioner had not committed the tort of misfeasance in public
office, consider the question relating to "Exemplary Damages" on its own
merit.

"Damages", as defined by Mcgregor "are the pecuniary compensation,
E . obtainable by success in an action, for a wrong which is either a tort or a
breach of contract, the compensation being in the form of a lump-sum which
is awarded unconditionally." This definition was adopted by Lord Hai/sham
L.C. in Broome v. Cassell & Co., (1971) 2 All ER 187. The definition in
Halsbury's Laws of England (4th Edition), Volume 12, Para 1102, is similar to
F the definition set out above.
The object of an award of damages is to give the plaintiff compensation
for damage, loss or injury he has suffered. The elements of damage recognised

G
by law are divisible into two main groups : pecuniary and non- pecuniary.
While the pecuniary loss is capable of being arithmetically worked out, the
non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated
-
in terms of money, not as a substitute or replacement for other money, but
as a substitute, what Mcgregor says, is generally more important than money:
it is the best that a court can do. In Re: The Medianna, (1900) A.C. 1300, Lord
Halsbury L.C. observed as under:

H "How is anybody t9 measure pain and suffering in moneys counted?
r

COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.) 1357
~obody can suggest that you can by arithmetical calculation establish I A
what is the exact sum of money which would represent such a thing .
as the pain and suffering which a person has undergone by reason
-of an accident. .. But nevertheless the law recognises that as a topic
upon which damages may be given."

This principle was applied in Fletcher v. Autocar and Transporters, B
(1968) 2 Q.B. 322 and Parry v. Cleaner, (1970) A.C. 1.

In a suit for damages under the Law of Tort, the court awards pecuniary
compensation after it is proved that the defendant committed a wrongful act.
In such cases, the court usually has to decide three questions:- C l
1. Was the damage alleged caused by the defendant's wrongful
act?
/
2 Was it remote?

3. What is the monetary compensation for the damage? D
These elements imply that there has to be always a plaintiff who had
suffered loss on account of wrongful act of the defendant. If the damage
caused to the plaintiff is directly referable to the wrongful act of the defendant,
the plaintiff becomes entitled to damages. How the damages would be
calculated, what factors would be taken into consideration and what arithmetical E
process would be adopted would depend upon the facts and circumstances
of each case.
-·
'

Now, the damages which can be awarded in an action based on Tort
may be Contemptuous, Nomina~ Ordinary or, for that matter, Exemplary. In the
instant case, we are concerned with the "Exemplary Damages" awarded by F
1-
this Court by Judgment under .review.

As pointed out earlier, the primary object of award of damages is to
·..11
compensate the plaintiff for the harm ~ne to him, while the secondary object
is to punish the defendant for his conduct in inflicting the harm. The secondary G
object can also be achieved in awarding, in addition to normal compensatory
damages, damages which are variously called as exemplary damages, punitive
damages, vindictive damages or retributory damages. They are awarded
whenever the defendant's conduct is found to be sufficiently outrageous to
merit punishment, for example, where the conduct discloses malice, cruelty,
insolence or the like. H
1358 SUPREME COURT REPORTS [1999] 3 S.C.R.

A It will thus be seen that in awarding punitive or exemplary damages, the -...
emphasis is not on the plaintiff and the injury caused to him, but on the
defendant and his conduct. "
Exemplary Damages made their appearance on the English legal scene
in l 760s when in two cases, namely Huckle v. Money and John Wilkes v.
B Wood, (1763) 2 Wils. KB 205 and (1763) Loffi 1 respectively, exemplary damages
were awarded. These cases were followed by two other cases, namely, Benson
v. Fredrick ( 1766) 3 Burr. 1845 relating to the tort of assault and Tullidge v ..
Wade (1769) 3 Wils. KB 18 relating to the tort of seduction, and in both the
cases, exemplary damages were allowed. Exemplary damages, therefore, became
-,
c a familiar feature of the Law of Tort and were .even awarded in cases relating
to trespass to land and trespass to goods.

The whole legal position was reviewed in Rookes v. Barnard, (1964) AC
1129 and the House of Lords laid down that except in few exceptional cases,
it would not be permissible to award exemplary damages against the defendant
D howsoever outrageous his conduct might be. The question of damages was
thoroughly 'canvassed in the judgment of Lord Devlin and after tracing the
history of such awards of exemplary damages from their origin in 1763, he
observed :

"These authorities convince me of two things. First, that your lordships
E could not without a complete disregard of precedent, and indeed of
statute, now arrive at a determination that refused altogether to
recognise the exemplary principle. Secondly, that there .are certain
categories of cases in which an award of exemplary damages can
•
...
serve a useful purpose in vindica!ing the strength of the law, and thus
affording a practical justification for admitting into the civil law a
F
principle which ought logically to belong to the criminal... ..I am well
aware t:Qat what I am about to say will, if accepted, impose limits not
hitherto expressed on such awards and that there is powerful, though
not compelling authority for allowing them a wider range."

Lord Devlin then set out the categories in which, in his view, exemplary
G
damages could be awarded, as under :
~

"(I) where there has been oppressive, arbitrary or unconstitutional
a~tion by the servants of the government;

(2) where the defendant's conduct has been calculated by him to
H make a profit which may well exceed the compensation payable
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1359
to the plaintiff; and A
(3) where such damages are expressly authorised by statute."

The principles laid down in Rookes v. Barnard (supra) "were followed
in five other cases in England out of which four were libel actions, including
McCarey v. Associated Newspapers Limited, (1965) 2 QB 86 = (1964) 3 All B
.,, ER 94 7 and Broadway Approvals Limited v. Odhams Press Limited, ( 1965) 2
AllER523.

In 1971, came the decision in Broome ,v. Cassell & Co. Ltd, (1971) 2 All
ER 187. The facts of the case may be briefly stated :

"(a) John Egerton Broome was a commander in the Royal Navy. In
c
July 1942 he was in command of the naval escort for a merchant
convoy of war materials in route to the Soviet Union. Acting on
orders received from the Admiralty, which had mistakenly formed the
impression that the convoy was about to be attacked, Broome directed
the ships to scatter in every direction. The result was calamitious. Left D
unprotected from attack, large numbers of ships and men and vast
quantities of material were lost. Broome's action was vindicated; the
error was the Admiralty's not his. Many. persons wrote about the
catastrophe, including Sir Winston Churchill and the war's official
historian, but none faulted Broome for it until Cassell & Co. Ltd. E
published "The Destruction of P.Q. 17''.

- (b) The book, advertised as "the true story of biggest- ever Russian
convoy that the Royal Navy left to annihilation", blamed Broome for
the disaster, accusing him of disobeying orders and deserting the
convoy. The book had earlier been rejected by its author's regular F
publisher, who had said :

'As written, the book is a continuous witch hunt of the plaintiff,
filled with exaggerated criticisms of what he did or did not do ...
We could not possibly publish the book as it is unless you took
out insurance against any writs for libel, and I don't think that G
any insurance company would underwrite you.'

The author then submitted the book for publication to Cassell & Co.
Ltd., which praised the book for its "very robust view of JibeJ dangers".
Cassell thought that the amount of profit which he would earn by publishing
the book would far exceed the amount of damages which he would be H
1360 SUPREME COURT REPORTS [1999] 3 S.C.R.

A required to pay in an action for libel. As anticipated, action for libel was
instituted against Cassell & Company. At the trial, neither the author nor the
publisher gave evidence. Every witness who was called supported the plaintiff.
The jury awarded compensatory damages of Pound l,OOO· in respect of the
proof copies and Pound 14,000 in respect of the hardback edition, an4_ _
B exemplary damages of Pound 25,000.

The defendants appealed. In dismissing the appeal, the Court of Appeal
considered the judgment in Rookes v. Barnard and speaking through Lord
Denning, M.R. said that Lord Devlin,
-
'threw over all that we ever knew about exemplary damages. He knocked
c down the common law as it had existed for centuries. He laid down
a new doctrine about exemplary damages.'

Lord Denning pointed out that, although _Rookes v. Barnard had been
followed in England, it had not been accepted in Australia, Canada or New
D Zealand and the day had arrived when it should no longer be followed in
England:

'This wholesale condemnation justifies us. I think, in examining this
new doctrine for ourselves: and I make so bold as to say that it should
not be followed any longer in this country.'
E He gave four reasons :

(a) the common law on the subject had been so well settled before
1964 that it was not open to the House of Lords to overthrow
it;
-
F (b) counsel who had appeared in Rookes v. Barnard had not argued
the point, and indeed had accepted the common law as It was
then understood;
(c) contrary to what Lord Devlin had said, there were two previous
decisions of the House of Lords approving awards of exemplary
G damages; and
(d) the doctrine laid down by Rookes v. Barnard was "hopelessly "" •
illogical and inconsistent".

Lord Denning further observed:-

H "All this leads me to the conclusion that, if ever there was a decision
' COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1361
of the House of Lords given per incuriam, this was it. The explanation A
is that the House, as a matter of legal theory, thought that exemplary
damages had no place in the civil code, and ought to be eliminated
from it; but, as they could not be eliminated altogether, they ought to
be confined within the strictest possible limits, no matter how illogical
those limits were..... I think the difficulties presented by Rookes v.
Barnard are so great the judges should direct the juries in accordance B
with the law as it was understood before Rookes v. Barnard. Any
attempt to follow Rookes v. Barnard is bound to lead to confusion."

Matter went, up in appeal before the House of Lords. Cassell & Co. Ltd.
v. Broome & Anr., (1972) l All ER 801=1972 A.C. 1027. Lord Hailsham L.C. C
did not agree with the Court of Appeal and held that Rookes v. Barnard
(supra) was correctly decided. All the observations of Lord Denning including
that Rookes v. Barnard was decided perc incuriam were diluted, rather overruled.

It is in this background that category (2) set out by Lord Devlin was
specified. Cassell & Company had published the book in spite of the D
knowledge that an action for libel was likely to be instituted against them ..
They were fully conscious that damages were likely to be awarded against
them for publishing that book. But they published the book as they thought
that the book would bring them much more money than what they would be
required to pay as damages. If it is with this motive that a tort is purposely
committed, it would be a fit case for award of exemplary damages. E
In spite of this decision, the controversy whether punitive or exemplary
damages should be allowed, still rages almost internationally and remains
-unresolved. It continues to be debated even in England, whether Exemplary
Damages should be allowed in the pre-Rookes v. Barnard manner or only in F
those exceptional cases which have been indicated in Rookes v. Barnard.

In an action for tort where the plaintiff is found entitled to damages, the
matter should not be stretched too far to punish the defendant by awarding
exemplary damages except when their conduct, specially those of the Govt.
and its officers, is found to be oppressive, obnoxious and arbitrary and is, G
sometimes, coupled with malice. While dealing with this category, namely, the
Govt. offlcers, it was observed in Rookes v. Barnard (supra):

"..... where one man is more powerful than another, it is inevitable that
he will try to use his power to gain his ends; and if his power is much
greater than the other's, he might, perhaps, be said to be using it H
1362 SUPREME COURT REPORTS - (1999] 3 S.C.R.
I

A oppressively. If he uses his power illegally, he must of course pay for
hfs illegality in the ordinary way; but he is not to be punished simply
because he is the more powerful. In the case of the government it is
different, for the servants of the government are also the servants of
the people and the use of their power must always be subordinate to
their duty of service."
B
If we were to apply the rule in Rookes v. Barnard as upheld in Cassell
& Co. Ltd v. Broome (supra) invariably and unhesitatingly and w,ere to award
~emplary damages in every case involving Govt. officers or GoVt. servants,
the result would be appalling.
c Executive, under the Goostitution, consists of Prime Minister, Cabinet
Ministers, Ministers of State and Civil· Services comprising of high
administrative officers on tl).e top down to the clerical level. They have as
important a role to play in the governance of the country as the Judiciary or
Legislature. The Executive, in running the administration of the country,
D should not be cowed down -and should be allowed to have full confidence
in its own existence so that its decision-making process is not, in any way,
affected. They must feel independent and keep themselves in an excellent
frame of mind ~ that the administrative files are cleared in time and the
Officers dealing with those files are not hesitant even in taking bold decisions
which have sometimes to be taken in the interest of administration. It is true
E that the fear of being proceeded against in a court of law for tort of misfeasance
in public office may keep them on the~right path and they may not falter, but
there is already the fear of departmental a_ction or proceedings being initiated
against them departmentally which itself is a safeguard for proper
administration. Departmentally, they are answerable for their lapses; Ministers, '
F- or, for that matter, even the Government is answerable to Parliament. If they
were constantly under the fear or threat of being proceeded against in a court
of law for even slightest of lapse or under constant fear of exemplary damages
being awarded against them, they will develop a defensive attitude which
would not be in the interest of administration.

G In Yuen Kun Yev & Ors. v. Attorney General of Hong Kong, (1987) 2
All ER 705, Lord Keith observed as under :

"...the prospect of claims would have a seriously inhibiting effect on
the work of his department. A sound judgment would be less likely
tO' be exercised if the Commissioner were to be c<>nstantly looking
H over his shoulder at the prospect of claims against him, and his
/
COMMON CAUSE, A REO:fD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1363
activities would be likely to be conducted in a detrimentally defensive A
frame of mind.. Consciousness of potential liability could lead td /
distortions of judgment. ... ". Emphasis supplied.

If the power has been exercised bona fide and honestly, there cannot
be any occasion for exemplary damages being awarded notwithstanding that
unintended injury was caused to someone. These, as also a few other elements, B
which we shall presently discuss, have to be kept in mind before awarding
exemplary damages.

Mr. Parasaran next made his submission on the quantum of damages
and contended that the amount of Rs.50 lakhs has been fixed in an arbitrary
manner without there being any rational basis for arriving at that figure. It is C
contended that the only reason given by the Court was that "all the facts and
circumstances of the case have been examined." The observation of this
Court in this regard may be reproduced :

"After examining all the facts and circumstances of this case and D
giving thoughtful consideration to this aspect, we direct Capt. Satish
Sharma to pay a sum of Rs.50 lakhs as exemplary damages to the
Government Exchequer. Since the property with which Capt. Sharma
was dealing was public property, the Government which is "by the
people" has \P be compensated. We further direct Capt. Sharma to
deposit the amount with the Secretary, Ministry of Finance, Government E
of India within nine months from today. The amount if not paid, shall
be recoverable as arrears of land revenue."

It is contended by Mr. Parasaran that the above reasons are not enough
for awarding punitive damages in the sum of Rs.50 lakhs against the petitioner.
He contended that the proceedings in which this order has been passed were F
proceedings under Article 32 of the Constitution and not a suit for recovery
of damages under law of Tort and, therefore, an order for exemplary damages
should not have been passed.

Right to access to this Court under Article 32 of the Constitution is a G
fundamental right. The Court has been given the power to issue directions
or orders or writs, including writs in the nature uf habeas corpus, mandamus,
prohibition, quo-warranto and certiorari, whichever may be appropriate, for
the enforcement of the fundamental rights. Obviously, the fundamental rights
would be enforced against the Govt. or its executive or administrative officers
or other public bodies. It is in the matter of enforcement of fundamental rights H
1364 SUPREME COURT REPORTS [1999] 3 S.C.R.

A that the Court has the right to award damages to compensate the loss caused
to a person on account of violation of his fundamental rights. The decisions
in which orders have been passed by this Court for damages under Article
32 of the Constitution for violation of fundamental right coupled with-, in some
cases, tortious liability, have already been specified above. The State itself
B cannot claim the right of being compensated in damages against its officers
on the ground that they had contravened or violated the fundamental rights
of a citizen.

Petitioner, as Miriister of State for Petroleum and Natural Gas, was part
of the Central Govt. By directing petitioner to pay a sum of Rs.50 lakhs to
C the Govt., the Court has awarded damages in favour of the Govt. of India in
proceedings under Article 32 of the Constitution which is not permissible as
the Court cannot direct the Govt. to pay the exemplary damages to itself.
Mr.Gopal Subramaniam asserted that it was a direction made to the petitioner
personally and the Court had treated him as a separate and distinct entity
than the Govt. He contended that since tort is a wrongful act, it cannot be
D treated as an act of the State and has always to be treated as referring to the
person who has committed it and, therefore, the petitioner could be rightly
directed by the Court to pay Rs.50 lakhs as exemplary damages.

This cannot be accepted. The whole thing has to be examined in the
context of Article 32 of the Constitution under which relief to a person or
E citizen can be granted only against Union of India or the State or their
Instrumentalities but the State cannot legally claim that since one of its
Ministers or Officers had violated the fundamental rights of a citizen or had
acted arbitrarily, it should be compensated by awarding exemplary damages
against that officer or Minister.
F In Rookes v. Barnard (supra), it was pointed out by Lord Devlin that
a plaintiff cannot recover exemplary damages unless he is the victim of
punishable behaviour. We have already pointed out that in the instant case,
there was no plaintiff. The petitioner, Common Cause, cannot be said to be
a plaintiff nor can it claim to have suffered any damage or loss on account
G of the conduct of the petitioner.

Lord Devlin further pointed out that award of exemplary damages should
be moderate. Some of the awards that the jury had made in the past, seemed
to him, to amount to a greater punishment than the punishment which was -
likely to be incurred if the conduct were criminal. It would be a punishment
H impvsed without the safeguard which the criminal law gives to an offender.
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.) 136~

/
/ Lord Devlin had a third consideration also in mind which related to the means A
of the party. Obviously, a small exemplary award would go unnoticed by a rich
defendant, while even a moderate award might cripple a poor defendant. The
conduct of the parties throughout the proceedings would also be a relevant
consideration in assessing exemplary damages.

· In our opinion, these elements or considerations are extremely relevant B
in determining the amount of exemplary damages but, unfortunately, none of
these factors has been taken into consideration and after recording a finding
that the conduct of the petitioner was oppressive and that he had made
allotments in favour of various persons for extraneous considerations, the
Court awarded an amount of Rs.50 lakhs as punitive damages. How did the C
Cou.rt arrive at this figure is not clear. Why it could not Forty nine lacs fifty
thousand?

Let us now examine the direction for investigation by the C.B.J. into the
· offence of "criminal breach of trust" or "anyfother offence."
D
This direction obviously consists of two parts : (a) Investigation by the
C.B.I. into the offence of criminal breach of trust; and (b) Investigation by the
C.B.I. into any other offence. We will take up the first part first.

The basis for the direction relating to investigation into the offence of
"criminal breach of trust" are the following observations of the Court : E
(a)"A Minister who is the executive head of the department concerned
distributes these benefits and largesses. He is elected by the people
and is elevated to a position where he holds a trust on behalf of the
people. He has to deal with the people's property in a fair and just
manner. He cannot commit breach of the trust reposed in him by the F
people.

(b) The allotments have been made in a cloistered manner. The petrol
pumps -- public property -- have been doled out in a wholly arbitrary
manner."
G
These observations indicate that the Court was of the opinion that a
person on being elected by the people and on becoming a Minister holds a
sacred trust on behalf of the people. This, we may venture to say, is a
philosophical concept and reflects the image of virtue in its highest conceivable
perfection. This philosophy cannot be employed for determination of the
offence of "criminal breach of trust" which is defined in the Indian Penal · H
\r
1366 SUPREME COURT REPORTS (1999) 3 S.C.R.

A Code. Whether the offence of "criminal breach of trust" bas been committed
by a person bas to be determined strictly on the basis of the definition of that
•
offence set out in the Penal Code to which we would advert a little later.

The Court also appears to have invoked the 'Doctrine of Public Trust·
which is a doctrine of environinental law under which the natural resources'
B such as air, water,· forest, lakes, rivers and wild life are public properties
"entrusted" to the Government for their safe and proper use and proper
protection. Public Trust Law recognises that some types of natural resources
are held in trust by the Government for the benefit of the public. The 'Doctrine
of Public Trust' has been evolved so. as to prevent unfair dealing with ore
C _dissipation of all natural resources. This Doctrine is an ancient and somewhat
obscure creation of Roman and British law which has been discovered recently
by environmental lawyers in search of a theory broadly applicable to
environmental litigation. ·

This doctrine was considered by this Court in its judgment in MC.
D Mehta v. Kamal Nath. [1997] 1 sec 388, to which one ofus (S.Sagbir Ahmad,
J.) was a party. Justice Kuldip Singh, who authored the erudite judgment and
has also otherwise contributed immensely to the development of enviroilmental
law, relying upon ancient Roman ~Doctrine of Public Trust", as also the work
of Joseph L Sax, Professor oi'Law, University of Michigan and other foreign·
decisions, wrote out that all natural resources are held in 'trust' by the Govt. ·
E The Do<trine enjoins upon the .Govt. to protect the resources for the enjoyment
of the general public rather than to permit their use for private ownership or
comm~rcial purposes. But this Doctrine cannot be invoked in fixing the criminal
liability and the whole matter will have to be decided on the principles of
criminal jurisprudence, one of which is that. the criminal liability has to be
F strictly construed and offence can be said to have been committed only when
all the ingredients of that offence as defined in the Statute are found to have
been satisfied.

The matter may be examined from another angle.

G Election to the State Legislature or the House of the People are held
under the Constitution on the basis of adult suffrage. On being elected as a
Member of the Parliament, the petitioner was inducted as Minister of State., ..
The Department of Petroleum and Natural Gas was allocated to him. Under
the allocation of business rules, made by the President of India, the distribution.
of petroleum products, inter alia, came to be allocated to_ the petitioner. This_
H allocation of business under the Constitution is done for smooth and better
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.) 1367
administration and for more convenient transaction of business of Government A
oflndia. In this way, neither a "trust", as ordinarily understood or as defin~
under the Trust Act, was created in favour of the petitioner nor did he become
a "trustee" in that sense ..

In Tito v. Waddell (No.2), (1977) 3 All ER 129, the question of Crown's
status as a trustee was considered and it was laid down:- . B
"I propose to tum at once to the position of the Crown as trustee,
leaving on one side any question of what is meant by the Crown for
this purpose; and I must also consider what is meant by 'trust'. The
word is in common use in the English language, and whatever may
be the position in this court, it must be recognised that the word is C
often used in a sense different from that of an equitable obligation
enforceable as such by the courts. Many a man may be in a position
of trust without being a trustee in the equitable sense; and terms such
as 'brains trust', 'anti-trust', and 'trust territories', though commonly
used, are not understood as relating to a trust as enforced in a court D
of equity. At the same time, it can hardly be disputed that a trust may
be created without using the word 'trust'. In every case, one has to
look to see whether in the circumstances of the case, and on the true
construction of what was said and written, a sufficient intention to
create a true trust has been manifested.
E
When it is alleged that the Crown is a trustee, an element which is
of special importance consists of the governmental powers and
obligations of the Crown; for these readily provide an explanation
which is an alternative to a trust. If money or other property is vested
in the Crown and is used for the benefit of others, one explantion can
be that the Crown holds on a true trust for tho.se others. Another F
explantion can be that, without holding the property on a true trust,
the Crown is nevertheless administering that property in the exercise
of the Crown's governmental functions. This latter possible explanation,
which does not exist in the case of an ordinary individual, makes it
necessary to scrutinise with greater care the words and circumstances G
> which are alleged to impose a trust."
~-
Many earlier decisions were relied upon and with reference to an earlier
decision reported in (1880) 1S Ch D 1, it was observed as undei:-.

H
• "In the Court of Appeal, this decision was unanimously reversed. The

. i ~· ·•
1368 SUPREME COURT REPORTS [1999] 3 S.C.R.

A court held that no trust, ·in the sense of a trust enforceable and
cognizable in a Court of Law', has been created, despite the use of the i
word 'trust' in the royal warrant: see per James LJ. Furthermore, the
Secretary of State for India in Council, though by statute made capable
of suing and being sued in that name, had not been made a body
corporate. All that had been done had been to provide that the
B Secretary of State for the tinie being should be the agent of the Crown
for the distribution of the property. James LJ regarded the
consequences of holding that there was a trust enforceable in the
courts as ·so monstrous that persons would probably be startled at
the idea'. He referred to matters such as the right of every beneficiary
c to sue for the administration of the trust and have the accountS-taken,
and 'imposing upon the officer of State all the obligations which in
this country are imposed upon a person who chooses to accept a
trust'. He also emphasised the words at the end of the Royal Warrant
as showing clearly that questions were to be determined, not by the
courts, but by the Secretary of State, with an ultimate appeal to the
D Treasury, as advising the Queen. Baggallay and Bramwell LJJ delivered
concurring judgments, with the latter emphasising the 'monstrous
inconvenience' and ·enormous expense of litigation' if there were a
trust enforceable by the courts, so that ·one should be reluctant, even
if the words were much stronger than they are, to hold that there is )-
'·
E a trust'.
Th~ House of Lords (1882) 7 App Cas 619, unanimously affirmed.the
Court of Appeal. In the leading speech, Lord Selbome LC attached
some weight to the words in the Royal Warrant being 'the Secretary
of State for India in Council', and 'for the time being', instead of his
F being described by his personal name, as indicating that he was not
intended to be a trustee in the ordinary sense, but was intended to
act as a high officer of State. After discussing the Order in council,
Lord Selboume LC quoted the part of the Royal Warrant which
. contained the words ·in trust for the use of', and said: ..-
'Now the words "in trust for" are quite consistent with, and
G
indeed are the proper manner of expressing, every species of
trust-a trust not only as regards those matters which are the
proper subjects for an equitable jurisdiction to administer, but as
respects higher matters, such as might take place between the
Crown and public officers discharging, under the directions of
H the Crown, duties or functions belonging to the prerogative and

[
..,,

COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1369

~
to the authority of the Crown. In the lower sense they are A
matters within the jurisdiction of, and to be administered by, the
ordinary Courts of Enquiry; in the higher sense they are not.
What their sense is here, is the ·question to be determined,
looking at the whole instrument and at its nature and effect."

Applying the principles laid down above, the petitioner does not, on B
becoming the Minister of State for Petroleum and Natural Gas, assume the role
of a "trustee" in the real sense nor does a· "trust" come into existence in
respect of the Government properties.

This brings us to the definition of the offence of "Criminal Breach of
Trust" as defined in Section 405 of the Indian Penal Code which, minus the c
Explanation, provides as under:

"405. Criminal breach of trust. Whoever, being in any manner entrusted
with property, or with any dominion over property, dishonestly
misappropriates or converts to his own use that property, or dishonestly
uses or disposes of that property in violation of any direction of law D
prescribing the mode in which such trust is to be discharged, or of
any legal contract, express or implied, which he has made touching the
discharge of such trust, or wilfully suffers any other person so to do,
commits 'criminal breach of trust'."
E
. A trust contemplated by Section 405 would arise only when there is an
entrustment of property or dominion over property. There has, therefore, to
be a property belonging to someone which is entrusted to the person accused
of the offence under Section 405. The entrustment of property creates a trust
which is only an obligation annexed to the ownership of the property and
arises out of a confidence reposed and accepted by the owner. This is what F
has been laid in The State of Gujarat v. Jaswant Lal Natha/al, AIR (1968)
SC 700. In Rashmi Kumar v. Mahesh Kumar Bhada, [1997) 2 SCC 397, the
essential ingredients for establishing the offence of criminal breach of trust,
as defined in Section 405, have been spelt out as follows:

"(i) entrusting any person with property or with any dominion over G
.. > property;
(it) the person entrusted dishonestly misappropriating or converting
to his own use that property; or dishonestly using or disposing
of that property or wilfully suffering any other person so to do
in violation of any direction of law prescribing the mode in H
1370 SUPREME COURT REPORTS [1999) 3 S.C.R

A is
which such trust to be discharged, or of any legal contract
...
made touching the discharge of such trust."

In this case, the earlier decision in Pratibha Rani v. Suraj Kumar, [ 1985]
2 SCC 370, was afUrmed. The case essentially related to the entrustment of
'Stridhan', but nevertheless, it is important, in the sense that the ingredients
B of the offence are set out and discussed. In Chellor Mankkal Narayan Ittiravi
Nambudiri vs. State ofTravancore-Cochin AIR 1953 SC 478 = 1954 Crl.LJ 102,
it was laid down that every breach of trust in the absence of mens rea or
dishonest intention cannot legally justify a criminal prosecution.

The expressions "entrusted with property" and "with any dominion
C over property" used in Section 405 came to be considered by this Court in
C.B.l v. Duncans Agro Industries Ltd, Calcutta, [1996] 5 SCC 591 =AIR
(1996) SC 2452, and the view earlier expressed was reiterated. It was held that
the expression "entrusted" has wide and different implication in different
contexts and the expression "trust" has been used to denote various kinds
D of relationships like trustee and beneficiary, bai.lor and bailee, master and
sel'Vant, pledger and pledgee.

Mr. K. Parasaran contended that "power to allot petrol pumps", and
that too under discretionary quota, cannot be treated as "property" within
the meaning of Section 405 of the Indian Penal Code. It is pointed out by him
E that the Minister merely makes an order of allotment. Subsequently, the Indian
Oil Corporation or the Bharat Petroleum Corporation enters into a dealership
agreement with that person and the business is regulated by the agreement
between the allottee and the Corporation (Indian Oil Corporation or Bharat
Petroleum Corporation). It is also pointed out that in pursuance of the
agreement, the allottee invests money, constructs the building and sets up the
F petrol pump. Mere exercise of "power to allot", it is rightly contended, cannot,
therefore, be treated as "property", within the meaning of Section 405, capable
of being mis-utilised or mis-approprhted.

The word "property", used in Section 409, IPC means the property
G which can be entrusted or over which dominion may be exercised. This Court
in R.K. Dalmia v. Delhi Administration, [1963] 1 SCR 253 =AIR (1962) SC
1821, held that the word "property", used in Section 405 IPC, has to be
interpreted in wider sense as it is not restricted by any qualification under
Section 405. It was held that whether ari offence defmed in that Section could
be said to have been committed would depend not on the interpretation of
H the word "property" but on the fact whether that particular kind of property
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. (S. SAGHIR AHMAD, J.] 1371
.., could be subject to the acts covered by that Section. That is to say, the word A
"property" would cover that kind of property with respect to which the
offence contemplated in that Section could be committed.
}
Having regard to the facts of the case discussed above and the
ingredients of the offence constituting criminal breach of trust, as defined in
Section 405, or the offence as set out in Section 409 IPC, we are of the opinion B
that there was no case made out against the petitioner for any case being
registered against him on the basis of the Judgment passed by this Court nor
was there any occasion to direct an investigation by the CBI in that case.

The other direction, namely, the direction to the C.B.I. to investigate
"any other offence" is wholly erroneous and cannot be sustained. Obviously,
c
direction for investigation can be given only if an offence is, prima facie,
found to have been committed or a person's involvement is prima facie
established, but a direction to the C.B.I. to investigate whether any person
has committed an offence or not cannot be legally given. Such a direction
would be contrary to the concept and philosophy of "LIFE" and "UBER.TY" D
guaranteed to a person under Article 21 of the Constitution. This direction
is in complete negation of various decisions of this Court in which the
concept of "LIFE" has been explained in a manner which has infused "LIFE"
into the letters of Article 21.

"Right to Life", set out in Article 21, means something more than mere E
• survival or animal existence. (See: State of Maharashtra v. Chandrabhan
Tale, AIR (1983) SC 803 = [1983] 3 SCC 387 = (1983] 3 SCR 327. This Right
also includes the right to live with human dignity and all that goes along with
it, namely, the bare neces~ities of life such as adequate nutrition, clothing and
shelter over the head and facilities for reading, writing and expressing oneself
in differ forms, freely moving about and mixing and commingling with fellow
F
human beings. [See: Francis Coralie Mullin v. Administrator Union Territory
ofDelhi, AIR(l981) SC 746 = [1981) 1 SCC608 = [1981] 2 SCR516; Olga Tellis
& Ors. v. Bombay Municipal Corporation & Ors., AIR (1986) SC 180 (paras
33 and 34) = [1985] 3 SCC 545 = [1985) Supp. 2 SCR 51; Delhi Transport
Corporation v. D. T.C. Mazdoor Congress & Ors., AIR (1991) SC 101 (paras G
<'.
)> 223, 234 and 259) = (1991) Supp. 1 SCC 600 = [1990] Supp. 1 SCR 142. In
Kharak Singh v. State of U.P., AIR (1963) SC 1295 = (1964] 1 SCR 332,
domiciliary visit by the Police was held to be violativ«? of Article 21.

A man has, therefore, to be left alone to enjoy "LIFE" without fetters.
He cannot be hounded out by the Police or C.8.1. merely to find out whether H
1372 SUPREME COURT REPORTS [1999] 3 S.C.R.

A he has committed any offence oris living as a Jaw-abiding citizen. Even under
Article 142 of the Constitution, such a direction cannot be issued. While
passing an order under Article 142 of the Constitution, this Court cannot
ignore the substantive provision of Jaw much Jess the constitutional rights
to
available a person. (See : Supreme Court Bar Assoiation v. Union ofIndia
B & Ors., [1998) 4 SCC 409 =AIR 1998 SC 1895).

Mr. Gopal Subramaniam contended that the Court has itself taken care
to say that the C.B.I. in the matter of investigation, would not be influenced
by any observation made in the Judgment and that it would independently·.
hold the investigation into the offence of criminal breach of trust or any other
C offence. To this, there is a vehement reply from Mr. Parasaran and we think
he is right. It is contended by him that this Court having recorded a finding
that the petitioner on being appointed as a Minister in the Central Cabinet,
held a trust on behalf of the people ·and further that he cannot be permitted
to commit breach of the trust reposed in him by the people and still further
that the petitioner had deliberately acted in a wholly arbitrary and unjust
D manner and that the allotments made by him were wholly ma/a fide and for
extraneous consideration, the direction to the CBI not to be influenced by any
observations made by this Court in the Judgment, is in the nature of palliative.
The CBI has been directed to register a case against the petitioner in respect
of the allegations dealt with and findings reached by this Court in the
E Judgment under review. Once the findings are directed to be treated as part
of the First Information Report, the further direction that the CBI shall not be
influenced by any observations made by this Court or the findings recorded
by it, is mere ~ullaby. . ·

We may say that w~ maintain the r_ule of accountability and liability of
F the Executive including pu.blic servants in administrative matters and confirm ·
that there should be transparency in all what they do, specially where grant
of largesse is concerned. But, the present case is being decided on its own
peculiar _facts and features in which, the finding ·as _to the commission of tort
of misfeasance recorded by_ this Court or the award of exemplary damages as
G also direction.for investigation by the C.B.I., cannot be sustained on acc'Junt
of errors
r
apparent on the face of the record.
~:
T O •

We may also point out that the powers of this Court under Article 32
and thai.'of the High Court under Article 226 are plenary powers and are not
fettered by any legal constraints .. Ifthe Court, in exercise of these powers has
H itself committed a ~istake, it has the plenary power to correct its own mistake
COMMON CAUSE, A REGTD. SOCIETY v. U.0.1. [S. SAGHIR AHMAD, J.] 1373
as pointed out by this Court in S. Nagaraja & Ors. v. State of Karnataka A
& Anr., [1993] Supp. 4 SCC 595, in which it was observed as under:

"Justice is a virtue which transcends all barriers. Neither the rules of
procedure nor technicalities of law can stand in its way. The order of
the Court;hould not be prejudicial to anyone. Rule of stare decisis -
is adhered for consistency but it is not as inflexible in Administrative B
La~ as in Public Law. Even the law bends before justice. Entire
concept of writ jurisdiction exercised by the higher courts is founded
on equity and fairness. If the Court finds that the order was passed
under a mistake and it would not have exercised the jurisdiction but
for the erroneous assumption which in fact did not exist and its C
perpetration shall result in miscarriage of justice then it cannot on any
principle be precluded from rectifying the error. Mistake is accepted
as valid reason to recall an order."

The Court also observed:

"Review literally and even judicially means re-examination or re- D
consideration. Basic philosophy inherent in it is the universal
acceptance of human fallibility. Yet in the realm of law the courts and
even the statutes lean strongly in favour of finality of decision legally
and properly made. Exceptions both statutorily and judicially have
been carved out to correct accidental mistakes or miscarriJlge of justice. E
Even when there was no statutory provision and no rufes were framed
by the h~hest court indicating the circumstances in which it co~ld .·
rectify its order the courts culled out such power to avoid abuse-of
process or miscarriage of justice.'' ,,,,

The Court further observed : F
'
"Rectification of an order thus stems fro~ the fundamental prineiple
that justice is above all. It is exercised to remove the error and not for
disturbing finality."

We have already held above that in the judgment und~~-thete G
are errors apparent on the face of the record, which has resulted in serious
miscarriage of justice. It is for this reason only that we have proceeded to
exercise the power of review.

For the reasons stated above, the application for Review is allowed. TheI
direction for payment ofRs.50 lakhs as exemplary damages as also the direction H
1374 SUPREME COURT REPORTS (1999) 3 S.C.R.

A for a case being registered by the C.B.I. against the petitioner for Criminal
Breach of Trust and investigation by them into that offence and the further ·•
direction to investigate whether petitioner has committed any other offence
are recalled. The amount of Rs.SO lalchs, if paid or deposited by the petitioner
with the Union of India, shall be refunded to him. All applications. for
B impleadment or intervention filed on behalf of allottees are rejected.

T.N.A. Petition allowed.

...
.

-