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

- **Citation:** [1999] 3 S.C.R. 1279
- **Court:** Supreme Court of India
- **Decided:** 1999-08-03
- **Bench:** S. Saghirahmad, K. Venkatas1Wami, S. Rajendra Babu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/common-cause-a-registered-society-v-union-of-india-ors-17175
- **Pages:** 96

## Headnote

Administrative Law :
A
B
Public Functionary-Minister-Allotment of petrol pumps out of C
discretionary quota-Cancellation by Supreme Court on the ground of
arbitrary exercise of power-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 :
Articles 226 and 32-Public Law-Private Law-Remedies-Violation
of fundamental rights-Remedy available in public law-Also available in
cases of torts.
D
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 of damages must be a victim-Award of exemplary
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 of property-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 of India, [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 B
has been filed against the aforesaid two judgments

## Text

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;-
--
COMMON CAUSE, A REGISTERED SOCIETY
v.
UNION OF INDIA & ORS.
AUGUST 3, 1999
[S. SAGHIRAHMAD, K. VENKATAS1WAMI AND
S. RAJENDRA BABU, JJ.]
Administrative Law :
A
B
Public Functionary-Minister-Allotment of petrol pumps out of C
discretionary quota-Cancellation by Supreme Court on the ground of
arbitrary exercise of power-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 :
Articles 226 and 32-Public Law-Private Law-Remedies-Violation
of fundamental rights-Remedy available in public law-Also available in
cases of torts.
D
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 of damages must be a victim-Award of exemplary
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 of property-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 of India, [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 B
has been filed against the aforesaid two judgments.
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, c
the same could not be challenged before a Court of Law;
(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 G
-
would be immune from civil or criminal action including action
in tort;
(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
F
committed any other offence are recalled. [1373-G-H; 1374-A]
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 B
President 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; and (c) The Civil Service.
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]
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
c
D
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.
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.
F
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)
G
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.
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.
1285
Constitution. [1314-A-B]
10. 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
A
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 of India,
[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 of Bihar, [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]
E
Rattan Lal, Law of Torts, 23rd Edition, referred to.
The First Report of the Law Commission of India, (1956), referred to.
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 of Mysore,
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 of A.P., AIR (1994)
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.
...
i
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 of the Country Berks, (188384) 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.
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
E
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]
B
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.
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
".
-
-
. -I
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 C
the Oil Selection Boards or the process of section carried out by the Boards.
(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
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 of Agriculture 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 of Police of the 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.
c
Ashok Kumar David v. MA.MM Abdul Codor, (1963) 1 WLR 834,
referred to.
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)
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.
Halsbury's Laws of England (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? A
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 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 B
would be adopted would depend upon the facts and circumstances of each
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 c
object of award of damages is to compensate the plaintiff for the harm done
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,
B
Ministers, or, for that matter, even the Government is answeral;lle to
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
F
consideration is means of the party. The Conduct of the parties throughout
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.
[1364-F-H; 1365-A-C]
S'
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.