Review Petition (C) No. 98 of 1997 in Writ Petition No. 26 of 1995, decided on August 3, 1999. 

JUDGMENT 

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 : 

"(i) Pass an appropriate writ, order or orders directing the respondents 1 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 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 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; 

(ii) Pass an appropriate writ, order or orders directing that the institution and organisation of the Comptroller and Auditor General of India, 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 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 a comprehensive study of the present inadequacies in the Prevention of Corruption Act, 1947, for making specific recommendations to strengthen this enactment for achieving the objectives 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 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; 

(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." 

2. The petition was taken up by this court on 10.2.1995 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." 

3. 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, Advocate. The Legal Aid Society shall also serve the unserved respondents by depositing the necessary process fee and others expenses. To be listed on 11 August, 1995. All affidavit and counter affidavits may be tendered in the Registry." 

4. On 11.8.95, the court passed the following order : 

"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 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 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, 11 August, 1995, under the caption '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 Ministry reacting to this news item. He may file the affidavit within the period of eight weeks. 

The writ petition is adjourned to 13.10.95." 

5. The petition, thus, was diverted towards Captain Satish Sharma who was, at that time, Minister of State for Petroleum and Natural Gas in the Central Government. By judgment, dated 25 September, 1996, [(1997) 1 Comp LJ 30 (SC) : (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) [page 32 of Comp LJ] : 

"Captain Satish Sharma shall show cause within two weeks 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. He shall further show-cause within the said period why he should not, in addition, be made liable to pay damages for his mala fide action in alloting petrol pumps to the above mentioned fifteen persons." 

6. The petitioner submitted the reply to the show-cause notice which was disposed of by judgment, dated November 4, 1996 [(1997) 1 Comp LJ 30 (SC) : (1996) 6 SCC 593]. The following operative order was passed [pages 33-34 of Comp LJ] : 

"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 oppressive, arbitrary or unconstitutional is unexceptionable. The question for consideration, however, is whether the action of Captain 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 wholly arbitrary, mala fide and unconstitutional. This court has given clear findings to this effect in the Common Cause case. We therefore, hold that Captain Satish Sharma is liable to pay exemplary damages. 

We have heard Mr. H. N. Salve on the question of quantum. Mr. Salve has vehemently contended that Captain Satish Sharma was a part of the 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 recent origin in this country even while awarding exemplary damages, leniency should be shown. There is some plausibility in the contentions raised by Mr. Salve. After examining all the facts and circumstances of this case and giving thoughtful consideration to this aspect, we direct Captain Satish Sharma to pay a sum of Rs. 50 lakhs as exemplary damages to the Government exchequer. Since the property with which Captain Sharma was dealing was public property, the Government which is 'by the people' has to be compensated. We further direct Captain Satish 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." 

7. The present review petition relates to these two judgments. 

8. 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'. 

9. On notice being served on Mr. H. D. Shourie, he filed his reply to the review petition on 21.2.1997. 

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

"In the matter above-mentioned, this court on 28 January, 1997, 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. 

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 4 March, 1997, and another letter, dated 30 June, 1997, was issued to Mr. Ashok K. Mahajan to serve 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. 

Further, Mrs. Sandhya Goswami, Advocate, has also filed four separate applications for impleadment on behalf of M/s. 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 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 application for clarification and modification of order, dated 26 September, 1996, which has been registered as I.A. No. 6. Further she has also filed counter affidavit on behalf of Union of India deposed by Director, Ministry of Petroleum and Natural Gas, Government of India. The said application and counter affidavit are being circulated with this office report for orders." 

11. Thereafter, the matter came up before the Bench comprising of Hon'ble S. C. 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 adjourned to 25 July, 1997. On 25 July, 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 list for 25 July, 1997, issued on 19 July, 1997, will not be taken up for hearing and the same strand adjourned to 22 August, 1997. 

By order, dated this the 25th day of July, 1997." 

12. The case was thus adjourned to 22.8.1997 and on that date, the Bench comprising of Hon. S. C. 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 1.9.1997, Mr. Gopal Subramaniam, senior counsel, was appointed as amicus curiae. When the case came up before the Bench of Hon. S. C. 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. S. C. Agrawal and Sujata Manohar, JJ., when the following order was passed : 

"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." 

13. 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). 

14. Mr. K. Parasaran, learned counsel for the applicant, has contended that since the applicant was Minister of State for Petroleum in the Central 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 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 limited 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 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. 

15. Learned counsel for the petitioner contended that the petitioner being a Minister of State in the Union Cabinet was as part of the Government 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 be held liable for damages or, for that matter, exemplary damages. 

16. Relying upon the decision of this court in Samsher Singh and another v. State of Punjab (1975) 1 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 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 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. 

17. We have seriously considered the contention of Mr. Parasaran, as set out above, but we are unable to agree with him on the broad proposition placed before us. 

18. 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 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 make rules for the convenient transaction of its business and for allocation amongst Ministers of the said business. It is in exercise of this power that 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. 

19. 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 : 

(a) Prime Minister and Ministers who are members of the Cabinet; 

(b) Ministers who are not of the Cabinet rank; 

(c) The Civil Services. 

20. 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. 

21. 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. 

22. Executive power is not defined in the Constitution. Article 73 relating 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 Mukherjea pointed out : 

"It may not be possible to frame an exhaustive definition of what 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." 

23. This judgment also deals with the concept of Cabinet, the Council of Ministers, its collective responsibility and how the executive functions subject 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 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 transmission into law though the condition precedent 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 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 Government of States; the Governor .... occupies the position 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 Government. 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 legislative part of the State to the executive part'. The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the 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 questions of policy are all formulated by them." 

24. This decision was referred to in State of M.P. v. Thakur Bharat Singh (1967 2 SCR 454 : AIR 1967 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 Indurkhya v. State of M.P. (1974) 3 SCR 624 : (1974) 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 Amratlal 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. (1982) 1 SCC 39 : (1982) 1 SCR 1137 : AIR 1982 SC 33. The whole constitutional position was reconsidered by a Seven-judge Bench of this court in Samsher Singh and another v. State of Punjab (1975) 1 SCR 814 : (1974) 2 SCC 832 : AIR 1974 SC 2192, in which the decision in B. K. Sardari Lal v. Union of India (1970) 1 SCC 411 : (1971) 3 SCR 461 : AIR 1971 SC 1547 was specifically overruled and it was held that under Article 74(1), it is the function of the 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 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 Assembly proceedings and reinforced by the actual working of the organs involved for about a 'Silver Jubliee' 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 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 'the business of the Government of the State in articles 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 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 ... Articles 77(3) and 166(3) provide that the 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. 

(k) Rules of business and allocation of business among Ministers are relatable to Articles 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 Articles 74 and 163 for a Council of Ministers to aid and advise the President and the Government are sources of the business. 

(l) 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." 

25. 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 that order. Moreover, 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 no immunity. Being essentially an order of the Government of India, passed in exercise of its executive functions. It would be amenable to judicial 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 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(1) or Article 77(2) of the Constitution. 

26. The related question as to the liability of the Minister to pay damages to the Government will be considered by us while dealing with the 'tort of misfeasance in public office' and payment of exemplary damages to the Government. 

27. 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 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 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 (that) those allotments in this court by a writ petition and the proceedings were 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 need not have been scrutinised by this court nor could such allotments be made the basis for awarding exemplary damages or investigation by CBI. 

28. Let us examine the viability of these submissions. 

29. Our Constitution provides for a Parliamentary form of Government. Article 79 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 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. Article 81 further provides that the House of the people shall consist of : (a) not more than 530 members chosen by direct election from 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 People. Article 86 speaks of the right of the President to address and send messages to 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 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 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 party which has obtained majority, to form the Government. The President appoints 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. 

30. 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 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 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. 

31. In the British Constitution and Policies, 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 remain secret, and only decisions as a whole are reported to the House when policy is announced. Any leakage of divergent views 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 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 unchanged. 

Thus the Cabinet stands or falls together. Where the policy of a particular Minister is under attack, it is the Government as a 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 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 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." 

32. It is further provided as under : 

"The doctrine of collective responsibility has practical advantages. First, it counteracts departmental separation 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 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." 

33. In this connection, an extract from 'The British Cabinet' by John P. Mackintosh, 1962 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 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 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 1903-05, Wyndham was pursuing 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 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 view of the Ministry in concluding the Hoare-Lavel Pact and his decisions were subsequently endorsed by the Cabinet till opposition became acute. He was then asked to disavow and denounce his actions but preferred, 'accepting his responsibility' to resign. There is, in addition, the normal moral sense of the work 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. 

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 1860s when it was reasonable to assume that a Minister could watch over every significant action of his department. Even then, there would have 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 dislodging the Government." 

34. 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 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. 

35. 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 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. 

36. Even in England, all Ministers and 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 the judicial review jurisdiction of the courts. (See : Halsbury's Laws of England, Fourth Edition (Re-issue), volume 8(2), para 422). 

37. Learned counsel for the petitioner contended that neither could the court award exemplary damages against the petitioner nor could it order any CBI investigation as the petitioner in making the allotment of petrol outlets 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 of Petroleum, had not committed the tort of misfeasance in public office and, therefore, he was 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' 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 particularly, as intricate questions of fact were involved. 

38. Since the question whether the action could have been initiated under the public law and whether exemplary damages could have been awarded in those proceedings relates to the question of jurisdiction, we would take up this question first. 

39. 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. Thus, the High Court has jurisdiction not only to grant relied for the enforcement of fundamental rights but also for 'any other purposes' 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 enforcement of fundamental rights guaranteed to a citizens under the Constitution. 

40. 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 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 Constitution. With the expanding horizon of Article 14 read with other articles dealing with fundamental rights, every executive action of the Government or other public bodies, including instrumentalities 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 Courts under Article 226 and can be validly scrutinised on the touchstone of the constitutional mandates. 

41. 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 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 privates individuals in relation to one another. 

42. The distinction between private law and public law was noticed by this court in Life Insurance Corporation of India v. Escorts Limited and others (1986) 1 Comp LJ 91 (SC) : (1985) Supp 3 SCR 909 : (1986) 1 SCC 265 : AIR 1986 SC 1370, in which the court observed as under [page 150 of Comp LJ] : 

"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 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." 

43. Public law field, since its emergence, is ever expanding in operational dimension. Its expanse covers even contractual matters. (See Union of India v. A. L. Ralia Ram (1964) 3 SCR 164 : AIR 1963 SC 1685; Mulamchand v. State of Madhya Pradesh (1968) 3 SCR 214 : AIR 1968 SC 1218, wherein the principles of restitution and unjust enrichment were applied). (See also State of West bengal v. B. K. Mondal and Sons (1962) Supp. 1 SCR 876 : AIR 1962 SC 779 and New Marine Coal Co. Ltd. v. Union of India (1964) 2 SCR 859 : AIR 1964 SC 152). 

44. Government decisions regarding award of contracts are also open to judicial review and if the decision making process is shown to be vitiated by 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 of India (1995) 1 Comp LJ 40 (SC) : (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 Articles 226 and 32 of the Constitution, 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 Agarwal v. State of Bihar (1977) 3 SCC 457: (1977) 3 SCR 249: AIR 1977 SC 1496). But the court changed its opinion in subsequent decisions and held 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 (P) Ltd. (1983) 2 Comp LJ 202 (SC) : (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 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) 1 SCR 818: (1990) 3 SCC 752: AIR 1990 SC 1031, in which this court relied upon its earlier decisions in E. P. Royappa v. State of Tamil Nadu (1974) 2 SCR 348 : (1974) 4 SCC 3 : AIR 1974 SC 555; Maneka Gandhi v. Union of India (1978) 1 SCC 248 : (1978) 2 SCR 621 : AIR 1978 SC 597; Ajay Hasia v. Khalid Mujib Sehravardi (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 1628, as also Divakar Das Marfatia and Sons v. Board of Trustees of the Port of Bombay (1989) 3 SCC 293: (1989) 2 SCR 751: AIR 1989 SC 1642. 

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

46. In exercise of jurisdiction under Article 32 of the Constitution, 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. In Rudul Shah v. State of Bihar (1983) 3 SCR 508 : (1983) 4 SCC 141 : AIR 1983 SC 1086, a three Judge Bench of this court awarded compensation (Rs. 30,000) for illegal detention. In Bhim Singh v. State of Jammu and Kashmir (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 for Democratic Rights v. State of Bihar (1987) 1 SCR 63'L : (1987) 1 SCC 265 : AIR 1987 SC 355; People's Union for Democratic Rights through its Secretary v. Police Commissioner, Delhi Police Headquarters (1989) 4 SCC 730 : (1989) 1 Scale 599; Saheli - a Woman's Resources Centre v. Commissioner of Police, Delhi (1990) 1 SCC 422: (1989) Supp SCR 488: AIR 1990 SC 513; Arvinder Singh Bagga v. State of U.P. (1994) 6 SCC 565: AIR 1995 SC 117; P. Rathinam v. Union of India (1989) Supp. 2 SCC 716; In re Death of Sawinder Singh Grower (1995) Supp 4 SCC 450: JT (1992) 6 SCC 271 (1992) 3 Scale 34; Inder Singh v. State of Punjab (1995) 3 SCC 70 : 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 (1996) 8 Scale (SP) 6. 

47. In cases relating to custodial deaths, this court has awarded compensation in Nilabati Behera v. State of Orissa (1997) 1 Comp LJ 13 (SC) : (1993) 2 SCC 746 : (1993) 2 SCR 581 : AIR 1993 SC 1960; State of M.P. v. Shyani Sunder 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 and Kaushalya v. State of Punjab (1996) 7 Scale (SP) 13. 

48. For medical negligence, compensation was awarded by this court in Supreme Court Legal Aid Committee v. State of Bihar (1991) 3 SCC 482; Dr. Jacob George v. State of Kerala (1994) 3 SCC 430 : (1994) 2 Scale 563 and Paschim Banga Khet Mazdoor Samity v. State of West Bengal and others (1996) 4 SCC 87: AIR 1996 SC 2426. 

49. Damages were also awarded by this court in Mrs. Manju Bhatia v. NDMC (1997) 6 SCC 370: AIR 1998 SC 223: (1997) 4 Scale 350. 

50. In N. Nagendra Rao and Co. v. State of Andhra Pradesh (1994) 6 SCC 205 : AIR 1994 SC 2663, this court observed as under : 

"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 Constitutional Government, the State cannot claim any immunity. The determination of vicarious liability of the State being linked with negligence of its 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 [A. H. General (1842) 1 Ph 306]. But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become out-dated 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." 

51. The difference between public and private law was again examined by this court in Nilabati Behera v. State of Orissa (1997) 1 Comp LJ 13 (SC). Dr. Anand, J. (as his Lordship then was) in his separate concurring judgment laid down as under [paras 34, 35 at pages 28-29 of Comp LJ] : 

"34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages in proceedings under Article 32 by this court or under Article 226 by the High Court, 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 indefeasible right of the citizen. The purpose of public law is not only to civilise public 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 Articles 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the 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 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 duty and is independent of the rights available to the aggrieved party to claim 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 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 of India 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 rights of the 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 in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case is possible. The decision of this court in the line of cases starting with Rudul Shah v. State of Bihar (1983) 3 SCR 508 : AIR 1983 SC 1086, 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 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 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 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 Article 32 or 226 are misused as a disguised substitute for civil action in private law." 

52. This is a classic exposition of the realm of public law by (Dr.) Justice Anand (as his Lordship then was), who 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. 

53. 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 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 referred to the civil court for determination of the amount of compensation of damages payable to the petitioner or the petitioner may be directed to approach the civil court. This proposition cannot be accepted. 

54. In M. C. Mehta and another v. Union of India and others (1987) 1 Comp LJ 99 (SC) : (1987) 1 SCC 395, this court observed as under [page 106 of Comp LJ] : 

"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 proceedings, namely, enforcement of a fundamental right and under Article 32(2) 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's case [(1984) 2 SCR 67]. 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 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 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 of the fundamental right must be gross and patent, that is, incontrovertible 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 sociality or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil 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 Article 32. This is the principle on which this court awarded compensation in Rudul Shah v. State of Bihar [AIR 1983 SC 1086: (1983) 3 SCR 508]. So also, this court awarded compensation to Bhim Singh [in Bhim Singh v. State of Jammu and Kashmir (1985) 4 SCC 677], 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 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." 

55. Thus, where public functionaries are involved and the 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 notwithstanding that damages are also claimed in those proceedings. 

56. The decision relied upon by Mr. Parasaran, namely, P. Rathinam v. Union of India and others (1989) Supp 2 SCC 716 and In Re Death of Sawinder 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. 

57. In view of the natural affinity with the British legal system, particularly, 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. 

58. In England, the position is not much different. In 1977, when certain 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 decision of inferior court of 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 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 to do so immediately before the passing of that Act and by virtue of Order 53, the court also got a power even in judicial review proceedings, to grant declaration and injunctions and to award damages. 

59. 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 pointed out that one of the restrictions on the making of an application for judicial review is that the person has to disclose 'sufficient interest' and obtain leave of the court. The Supreme Court Act, 1981, read with Order 53, rule 3, indicates that no application for judicial review can be made (either in a civil or criminal case) unless the leave to apply for judicial review has been obtained. The purpose of this requirement is to eliminate frivolous, vexatious or hopeless application for judicial review and to ensure that 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 section 31(3) of the Supreme Court Act, 1981, and Order 53 rule 3(7). 

60. In R. v. Horsham justices (1982) QB 762 : (1982) 2 All ER 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 made under the Contempt of Courts Act, 1961, prohibiting the publication of any report of committal proceedings until the commencement of the trial. 

61. 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 apply to an authority exercising administrative powers. But this distinction between judicial and administrative activities was obliterated by the decision of the House of Lords in Ridge v. Baldwin (1964) AC 40 : (1963) 2 All ER 66 (HL). The effect of this decision is that the judicial review lies not only against an inferior court of tribunal, but also against persons or bodies which perform public duties or functions. 

62. Thus judicial review would lie against persons and bodies carrying out 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. 

63. There is also a self-imposed restriction on the exercise of power of 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 and Harlow General Commissioners (1983) 3 All ER 257, the court observed : 

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

64. On an application for judicial review, the court has power to award damages to the applicant provided the claim for damages has been included in the statement made in support of the application for leave to apply for 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 531. The application for judicial review, if not made at the earliest, is liable to be dismissed for delay and latches. 

65. There is, therefore, not much 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 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. 

66. Mr. Parasaran next contended 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. This submission is also liable to be rejected. 

67. 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, 23rd Edn., 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 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 (NS) 3101. 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 authorised by it. (see Canterbury (Viscount) A. H. General (1842) 1 Ph 306; High Commissioner for India and Pakistan v. Lall (1948) 40 Bom 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) 1 Ch 73), only the actual wrongdoer could be sued 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 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 (section 40), or affects powers or authorities exercisable by virtue of the prerogative of the Crown or conferred upon 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 :

(1) in respect of torts committed by its servants or agents, provided that the act or omission of the servant or agent would, apart from the Act, have given rise to a cause of action in tort 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 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 Negligence) Act, 1945, binds the Crown. Although the Crown Proceedings Act preserves the immunity of the Sovereign in person and contains saving 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 tortious liability." 

68. From 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 officer and servants. 

69. The maxim that the 'King can do no wrong' on the basis of which 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. 

70. 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 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 Government 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 marking a departure from the common law rule that no proceedings, civil or criminal, could be filed against the Crown. 

71. In spite of the above provision, the Supreme Court of Calcutta in The Peninsular and Oriental Steamship Navigation Co. v. The Secretary of State for India (1868-69) Born HC Reports, vol. V (Appendix A) page 1, held that the rule of immunity was applied by drawing a distinction by the acts done by the public servants in the delegated exercise of sovereign powers and 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 for any act done by any of its officers or soldiers in carrying on hostilities, or for the act of any of its naval officers in seizing as prize property of a subject, under the supposition that it was the property of an enemy, 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 functions." 

72. This decision was followed by the Calcutta High Court in Nobin Chunder Dey v. Secretary of State for India ILR (1875-76) 1 Cal 11, but the Madras High Court in Secretary of State for Indian Council v. Hari Bhanji and another ILR (1882) 5 Mad 273 and the Bombay High Court in P. V. Rao v. Khushaldas S. Advani (1949) 51 Born LR 342: AIR 1949 Born 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 (1950) SCR 621 : AIR 1950 SC 222 and it was clearly laid down that the Government would also be liable for torts committed in exercise of sovereign powers except when the act complained of amounted to an act of State. 

73. Government of India Act, 1858, was replaced by the Government 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 Government of India Act, 1935, and in this Act, the corresponding provision was made in section 176(1). This provision was continued in the Constitution by Article 300(1) 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 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 Constitution had not been enacted." 

74. The decision of this court in Province of Bombay v. K. S. Advani, 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 increase in its activities has led to a greater impact on the citizen. For the establishment 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 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 6f a Welfare State which implies that the State takes care of those who are unable to help themselves. 

75. The Commission after referring to various provisions in the legislation of other countries also observed : 

"The old distinction between sovereign functions or governmental and non-governmental functions should no longer be invoked to determine the liability of the State. As Professor Friedman observes : 

'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 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 activity in question'." 

76. In State of Rajasthan v. Mst. Vidhyavati AIR 1962 SC 933, a claim for damages 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 Government for official use of the Collector of Udaipur, 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 : 

"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 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 liable vicariously for the tortious act of its servant." 

77. The course of justice, insofar as the tortious liability of the State is concerned, was disturbed by the decision of this court in Kasturilal Ralia Ram Jain v. State of U.P. AIR 1965 SC 1039 : (1965) 1 SCR 375, in which a partner of Kasturilal Ralia Ram Jain, a firm of jewellers of Amritsar, had gone 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 gold could not be returned as the Head Constable in charge of the Malkhana 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 Gajendragadakar, 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 him, and to seize property found with him, 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 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." 

78. The earlier decision of this court in Mst. Vidyavati's case [AIR 1962 SC 933], supra, was distinguished on the ground that it was based on a tortious liability not arising from the exercise of sovereign power. The decision in Kasturilal's case, [AIR 1965 SC 1039 : (1965) 1 SCR 3751, supra, has apart from being criticised (see Constitutional Law of India 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 Smt. Basava Kom Dyamogouda Patil v. State of Mysore 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 [(1983) 3 SCR 508 : (1983) 4 SCC 141 : AIR 1983 SC 10861, supra, Bhim Singh v. State of J & K, [(1985) 4 SCC 677 : AIR 1986 SC 4941, supra, Saheli, a Woman's Resources Centre v. Commissioner of Police, Delhi [(1990) 1 SCC 422 : (1989) Supp SCR 488 : AIR 1990 SC 5131, supra; People's Union of Democratic Rights v. Police Commissioner, Delhi [(1989) 4 SCC 730 (1989) 1 Scale 5991, 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 [AIR 1965 SC 1039 : (1965) 1 SCR 3751, supra. It may be mentioned that in Kasturilal's case, the court did not consider the State liability for violation of fundamental 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 'Sovereign immunity'. Reference may also be made to the decision of Privy Council in Maharaj v. Attorney General of Trinidad & Tobago (No. 2) (1978) 2 All ER 670 (PC) 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 Trinidad and Tobago on the ground that he was deprived of his liberty without due process of law as guaranteed to him under section 1 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 may be the only practicable form of redress in some cases. 

79. The entire case law was reviewed by R. M. Sahai, J., in his illuminating judgment in N. Nagendra Rao and Co. v. State of A.P. AIR 1994 SC 2663: (1994) 6 SCC 205 in which the case of Nilabati Behera, (1997) 1 Comp LJ 13 (SC), supra, was followed and it was observed, inter alia, as under : 

"But there the immunity ends. No civilised system can permit 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 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 modern social thinking of progressive 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 modern jurisprudential thinking. The need of the State to have extraordinary powers cannot 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 law and negligently. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a Welfare State is not shaken. Even in America, where 'this doctrine of sovereignty found in 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 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 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 constitutional Government, the State cannot claim any immunity." 

80. Reference may also be made to the decision of this Court in Shalam Sunder v. State of Rajasthan (1974) 1 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 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 Fulsing Mistry, N. H. Majumdar AIR 1960 SC 675 : (1960) 2 SCR 942 and in both these decisions, observations of Lord Watson in Richard Coomber v. The Justices of the County Barks (1883-84) 9 AC 61 that traditional sovereign functions were the making of laws, 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. 

81. 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. 

82. The next submission of Mr. Parasaran relates to the tort of misfeasance 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 [as] the ingredients of the tort of misfeasance in public office were not made out, the rule of exemplary damages was riot 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 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 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 r damages can-not be allowed in favour of the State. It is also contended that the petitioner at the relevant time was the Minister of State 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 Government 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. 

83. We would first consider the meaning and contents of the tort of misfeasance in the public office. 

84. '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. Jowitt's Dictionary of English Lazy 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, or in the breach of a duty imposed by law on a person towards the public. 

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, such as false imprisonment;

(b) torts to real property, such as ouster, trespass, nuisance, waste, subtraction, disturbance;

(c) torts to personal property, consisting.

(i) in the unlawful taking or detaining of or damages 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. 

The second class includes deceit and negligence in the discharge of a private duty. 

The third class includes those cases in which special damage is caused to an individual by the breach of a duty to the public." 

85. Winfield's classic 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 redressable by an action for unliquidated damages." 

86. Apart from tort which may be committed by a private individual, the officers of the Government 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 Government 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 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 if the 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 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. 

87. In Administrative Law by Sir William Wade, 7th Edn., 'misfeasance in public office' has been defined as malicious abuse of power, deliberate mal-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 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." 

88. Prof. Wade further proceeds to say as under : 

"There are now clear indications that the courts will not award damages against public authorities merely because they have made some order which turns out to be ultra vines, unless there is malice or conscious 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 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 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 provided the import of turkey meat from France and was held unlawful by the European Court as being a 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 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 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 malice as judges have often called it, seems now to be established as the decisive factor." 

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

"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 : 

1. if it involves the commission of a recognised tort such as trespass, false imprisonment or negligence; 

2. if it is actuated by malice, e.g., personal spite or a desire to injure for improper reasons; 

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

The decisions suggest that there is unlikely to be liability in the 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 an obiter dicta in a dissenting judgment, 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 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." 

90. Halsbury's Laws of England, vol I(1), 4th Edn. (Reissue), (para 203), provides as under : 

"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 motive is necessary in respect of certain torts and may negative a defence of qualified privilege in respect of defamation, but this is 9 not peculiar to public 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 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 not of itself found an action for damages." 

91. De Smith in judicial Review of Administrative Action, while speaking of tort of misfeasance in public office, says as under : 

"A public authority or person holding a public office may be liable for the tort of misfeasance in public office where : 

(1) there is an exercise or non-exercise of public power, whether commnon 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 

(3) the plaintiff is in consequence deprived of a benefit or suffers other loss." 

De Smith further says as under : 

"A ower is exercised maliciously if its repository is motivated by personal animosity towards those 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 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 repository of a power, unless it has been expressly pleaded and properly particularised." 

92. 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 as under : 

"A number of elements must combine to make a purported exercise of administrative power wrongful. The first is that the purported exercise of power must 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 power. A valid exercise of power by a public officer may inflict on another an unintended but foreseeable loss - or even an intended loss; but, if the 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 which the common law protects. However, a purported exercise of power is not necessarily wrongful because it is ultra vires. The history of the tort shows that a public 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 ultra vires." 

93. With regard to the MENTAL ELEMENT, the High Court of Australia 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 [(1703) 2 Ld Raym 938], in which Ashby complained that the constables 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 not have suffered, if the 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 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 : 

"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 that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform 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 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 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 not treat the plaintiff with procedural fairness. It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office' Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise 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 office. If the impugned conduct then causes injury, the cause of action is complete." 

94. 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, however, held ill the same case that if the action of the authority is actuated by malice, it would amount to 'tort of misfeasance by a public officer'. In Asoka Kumar David v. M.A.M.M. Abdul Cader (1963) 1 WLR 834 (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 and that it will injure the plaintiff. (see also Bourgoin SA & others v. Ministry of Agriculture Fisheries and Food (1985) 3 All ER 585 (CA). In Jones v. Swansea City Council (1989) 3 All ER 162 (CA), it was held that if the 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 dissented from by the House of Lords, though the Court of Appeal's decision was reversed on facts [see bones v. Swansea City Council (1990) 3 All ER 737 (HL)]. 

95. In Three Rivers District Council and others 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 deliberate and dishonest wrongful abuse of the powers given to a public officer and the purpose of the tort was to provide compensation for those who stiffer loss as a result of improper abuse of power. The conclusions reached in that case were : 

"Issue No. 1 

Misfeasance in public office 

(1) 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 the intention to injure, although, as suggested by the majority in Northern Territory v. Mengal (1995) 69 ALJR 527, it has some similarities to them. 

(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, ingredients of the tort. To act with such knowledge is to act in a sufficient 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 has no power to do the act complained of, it is sufficient that the officer has actual knowledge that the act was unlawful or, in circumstances in which he believes or suspects that the act is beyond his powers, that he does 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. 

(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 circumstances in which he believes or suspects that his 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 knowledge, they amount to recklessness which is sufficient 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 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 plaintiff 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 that the defendant was a public officer or entity, and that his loss was caused by the wrongful act." 

96. 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 office. In Bourgoin SA v. Ministry of Agriculture, Fisheries and 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 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 Appeal, that proof of actual malice, ill-will or specific intent to injure is not essential to the tort. It was enough if the plaintiff established that the defendant acted unlawfully in a manner foreseeably injurious to the plaintiff. In another decision in Bennett v. Commissioner of Police of the Metropolis and others (1995) 2 All ER 1 (at pages 13 and 14), which was considered in Three Rivers' case, supra, it was held that the tort of misfeasance in public office required express intent to injure. 

97. Tort of misfeasance in public office was also considered by this court in Lucknow Development Authority v. M. K. Gupta (1994) 1 Comp LJ 1 (SC) : (1994) 1 SCC 243. Relying upon the Administrative Law of 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 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. 10,000 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 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 th