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PETITIONER: COMMON CAUSE, A REGISTERED SOCIETY

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       03/08/1999

BENCH: S.Saghir Ahmad, K.Venkataswan, S.R.Babu

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 institutions and organisations  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 comprehensive study of the present inadequacies in the  Prevention  of Corruption Act 1947 for making  specific recommendations  to strengthen this enactment for  achieving the  objective  of  curbing and checking corruption  at  the political and bureaucratic levels in the country.

     (iv)  Pass  an  appropriate   writ,  order  or  orders

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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."

     The  petition  was taken up by this Court  on  10.2.95 when the following Order was passed:-

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

     On 10.5.95, the following Order was passed:-

     "We  request  the Supreme Court Legal Aid  Society  to depute  a  counsel to assist us in this case  alongwith  Mr. Shourie,  Adv.   The Legal Aid Society shall also serve  the unserved respondents by depositing the necessary process fee and other expenses.  To be listed on 11th August, 1995.  All affidavits  and  counter affidavits may be tendered  in  the Registry."

     On 11.8.95, the Court passed the following Order:-

     "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  August  11, 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

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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."

     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  September 25, 1996, [(1996) 6 SCC 530]  all the  15 petrol outlets, allotted by the Minister to  various persons  out of his discretionary quota, were cancelled  and the  following  directions  were issued  to  Captain  Satish Sharma (petitioner) :-

     "Capt.   Satish  Sharma  shall show-cause  within  two weeks  why  a  direction 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 allotting petrol pumps to the above mentioned fifteen persons."

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

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

     We  have  heard  Mr.   HN Salve  on  the  question  of quantum.   Mr.   Salve has vehemently contended  that  Capt. Sharma  was a part of the 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 Capt.  Satish Sharma to  pay  a sum of Rs.  50 lacs as exemplary damages  to  the Government  Exchequer.  Since the property with which  Capt. Sharma was dealing was public property, the government which is "by the people" has to be compensated.  We further direct Capt.   Sharma  to  deposit the amount with  the  Secretary,

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Ministry  of Finance, Government of India within nine months from today.  The amount if not paid, shall be recoverable as arrears of land revenue."

     The  present  Review  Petition relates  to  these  two Judgments.

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

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

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

     "In  the  matter above-mentioned, this Court  on  28th January,  1997  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 4th March, 1997 and  another letter  dated  30th 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 25th 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."

     Thereafter,  the  matter  came  up  before  the  Bench comprising  of  Hon.   SC Sen and Sujata  Manohar,  JJ.,  on 8.7.1997.   Mr.   H.D.   Shourie,  who had  filed  the  Writ

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Petition (C) No.  26 of 1995, was present in person, but the case was adjourned to 25th of July, 1997.  On 25.7.1997, the case  was shown in the cause-list, but the following  notice was also published in that cause list:

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

     BY ORDER

     DATED this the 25th day of July, 1997."

     The  case was thus adjourned to 22.8.1997 and on  that date  the  Bench  comprising  of Hon.   SC  Sen  and  Sujata Manohar,  JJ.,  adjourned  the case to  9.9.1997.   Mr.   K. Parasaran,  Senior Counsel appearing for the petitioner, was directed  to  give his written arguments.  On 1.9.1997,  Mr. Gopal  Subramaniam, Senior Counsel, was appointed as  amicus curiae.   When the case came up before the Bench of Hon.  SC Sen  and  Sujata Manohar, JJ., Their Lordships released  the case with the further direction that it would not be treated as  part-heard  with them.  On 27.3.1998, the case  came  up before the Bench of Hon.  SC Agrawal and Sujata Manohar, JJ. when the following order was passed :

     "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."

     It  was  thereafter that the matter was placed  before this  Bench.  We have heard learned counsel for the parties. We  have  also heard Mr.Gopal Subramaniam,  Senior  Counsel, (Amicus Curiae).

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

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initiated  under the Private Law by filing a suit in a Court of competent jurisdiction.

     Learned  counsel for the petitioner contended that the petitioner  being  a Minister of State in the Union  Cabinet was  a  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 not be held liable for  damages or, for that matter, exemplary damages.

     Relying  upon  the decision of this Court  in  Samsher Singh  & Anr.  vs.  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.

     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.

     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.

     The  functions  of the Govt.  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  Cabinet  rank; (c) The Civil Service.

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     Since  the  functions of the Govt.  are carried on  by the  Executive in the name of the President on the advice of Ministers,  they  (Ministers)  alone are answerable  to  the Parliament.  The Civil Service as such has no Constitutional personality  or  responsibility  separate   from  the   duly constituted Govt.

     Article  77(1) and (2) provide that whatever executive action  is taken by the Government of India, the same  shall be  expressed  to  have  been  taken  in  the  name  of  the President.

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

     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 the  formulation of governmental policy and its 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 Govt.   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 Govt.  In the Indian Constitution, therefore,   we  have  the   same  system  of  parliamentary executive  as  in  England  and  the  Council  of  Ministers consisting,  as  it does, of the members of the  legislature is,  like  the  British Cabinet, ‘a hyphen  which  joins,  a buckle  which  fastens the legislative part of the State  to

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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."

     This  decision  was referred to in State of M.P.   vs. 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 vs.  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  vs. F.N.   Rana, 1964 (5) SCR 294 = AIR 1964 SC 648 and again in Bishambhar  Dayal Chandra Mohan vs.  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 & Anr.  vs.  State  of Punjab,  1975  (1) SCR 814 = (1974) 2 SCC 832 = AIR 1974  SC 2192,  in which the decision in B.K.  Sardari Lal vs.  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 jubilee’ span of time."

     It  was  also pointed out in this case that the  words "business  of the Government of India" and "the business  of the  Government of the State", as used in Articles 77(3) and 166(3),  include  "all executive business".  Seervai in  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" :-

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     "(i)  The  expressions "business of the Government  of India"  and "the business of the Government of the State" in Arts.  77(3) and 166(3) includes "all executive business".

     (j)  "Where the Constitution required the satisfaction of  the  President or the Governor for the exercise  of  any power  or  function by the President or the Governor as  the case   may  be  ...   the   satifaction  required   by   the Constitution  is  not  the   personal  satisfaction  of  the President  or  the Governor but is the satisfaction  of  the President  or  of the Governor in the  constitutional  sense under  the  Cabinet  system of government ....   It  is  the satisfaction  of  the Council of Ministers on whose aid  and advice the President or the Governor generally exercises all his  powers  and  functions...."  Arts.   77(3)  and  166(3) provide  that the 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 Arts.  53 and 154 which  provide that executive power shall be exercised by the President and by  the  Governor  either directly  or  through  subordinate officers.   The  provisions made in Arts.  74 and 163 for  a Council of Ministers to aid and advise the President and the Governor "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."

     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 Govt.  of India have to be expressed in the name of the President;  but this would  not make that order an order passed by the  President personally.   That  being so, the order carries with  it  no immunity.   Being  essentially  an order of  the  Govt.   of India,  passed  in exercise of its Executive  functions,  it would  be amenable to judicial scrutiny and, therefore,  can constitute  a valid basis for 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.

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

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     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 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 C.B.I.

     Let us examine the viability of these submissions.

     Our  Constitution provides for a Parliamentary form of Govt.   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  the People.  Article 80 provides for the composition  of the  Council  of  States while Article 81 provides  for  the composition  of the House of the People.  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 the 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 has  secured  the majority  in the House of the People would govern while  the parties  which  are  in  the   minority  would  sit  in  the Parliament  as members of the "Opposition." It is on account of  this convention that the President invites the leader of the political party which has obtained majority, to form the Govt.   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

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collectively responsible to the House of the People.

     The   concept   of   "collective  responsibility"   is essentially a political concept.  The country is governed by the  party in power on the basis of the policies adopted and laid  down  by  it  in  the  Cabinet  Meeting.   "Collective Responsibility"  has two meanings:  The first meaning  which can  legitimately be ascribed to it is that all members of a Govt.   are  unanimous in supprot 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.

     In  the British Constitution & Politics 5th Edition by J.  Harvey and L.  Bather, it is said as under :

     "Except  when a minister explains the reasons for  his resignation,  parliament  hears  nothing  of  the  Cabinet’s current  deliberations.   These  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 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  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."

     It is further provided as under :

     "The   doctrine  of   collective  responsibility   has

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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."

     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 purusing 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 views 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 word meaning "culpable"  and  a minister may, like a private  individual, feel  responsible if he could by greater wisdom or  exertion have prevented some unfortunate occurrence.

     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."

     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.

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     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.

     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].

     Learned  counsel  for  the petitioner  contended  that neither  could the Court award exemplary damages against the petitioner  nor could it order any C.B.I.  investigation  as the petitioner in making the allotment of petrol outlets had not committed any offence, much less an offence of breach of trust.   It  is  also contended that  the  petitioner  while making  allotments out of his discretionary quota  available to him as Minister of State for Petroleum, had not committed the  tort of misfeasance in public office and, therefore, he 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.

     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.

     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 relief  for  the enforcement of Fundamental Rights but  also for  "any other purpose" which would include the enforcement of  public  duties by public bodies.  So also,  the  Supreme Court  under  Article  32  has  the  jurisdiction  to  issue prerogative  Writs for the enforcement of Fundamental Rights guaranteed to a citizen under the Constitution.

     Essentially,  under  public  law, it  is  the  dispute

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between  the citizen or a group of citizens on the one  hand and  the State or other public bodies on the other, which is resolved.   This is done to maintain the rule of law and  to prevent  the  State or the public bodies from acting  in  an arbitrary manner or in violation of that rule.  The exercise of  constitutional powers by the High Court and the  Supreme Court under Article 226 and 32 has been categorised 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 Govt.  or other  public  bodies,  including Instrumentalities  of  the Govt.,  or those which can be legally treated as "Authority" within the meaning of Article 12, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of  this  Court  under Article 32 or the High  Courts  under Article 226 and can be validly scrutinised on the touchstone of the Constitutional mandates.

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

     The distinction between private law and public law was noticed by this Court in Life Insurance Corporation of India vs.   Escorts  Limited  & Ors., 1985 Supp.  (3)  SCR  909  = (1986)  1  SCC  264 = AIR 1986 SC 1370, in which  the  Court observed as under:-

     "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."

     Public  Law  field,  since   its  emergence,  is  ever expanding in operational dimension.  Its expanse covers even contractual  matters.   (See:   Union  of  India  vs.   A.L. Rallia Ram, 1964 (3) SCR 164 = AIR 1963 SC 1685;  Mulamchand vs.  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 vs.  B.K.  Mondal & Sons, 1962 Supp.  (1) SCR 876 = AIR 1962 SC  779  and New Marine Coal Company Limited vs.   Union  of India, 1964 (2) SCR 859 = AIR 1964 SC 152).

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     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 vs.  Union of India, (1994)  6 SCC  651 = AIR 1996 SC 11.  Initially the Supreme Court  was of  the  opinion that while the decision making process  for award  of  a contract would be amenable to  judicial  review under  Article 226 or 32 of the Constitution, 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 vs.  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 vs.  Lotus Hotels Pvt.  Ltd., (1983) 3 SCC  379  =  AIR 1983 SC 848.  This Court even went  to  the extent  of  saying  that  the terms of  contract  cannot  be altered  in  the  garb  of the duty to  act  fairly.   (See: Assistant Excise Commissioner vs.  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 vs.  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 vs.  State of Tamil  Nadu, 1974  (2) SCR 348 = (1974) 4 SCC 3 = AIR 1974 SC 555;  Menka Gandhi  vs.  Union of India, (1978) 1 SCC 248 = 1978 (2) SCR 621  =  AIR  1978  SC 597;  Ajay  Hasia  vs.   Khalid  Mujib Sehravardi, (1981) 1 SCC 722 = 1981 (2) SCR 79 = AIR 1981 SC 487;   R.D.  Shetty vs.  The International Airport Authority of India, 1979 (3) SCR 1014 = (1979) 3 SCC 489 = AIR 1979 SC 1628,  as  also  Dwarka Das Marfatia & Sons  vs.   Board  of Trustees of the Port of Bombay , (1989) 3 SCC 293 = 1989 (2) SCR 751 = AIR 1989 SC 1642.

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

     In  exercise  of jurisdiction under Article 32 of  the Constitution,  this  Court has awarded compensation  to  the petitioners  who suffered personal injuries at the hands  of the  officers of the Government and the causing of  injuries which  amounted  to  tortious act was  compensated  by  this Court.  In Rudul Sah vs.  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 vs.  State of Jammu  &  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  vs. State  of  Bihar, 1987 (1) SCR 631 = (1987) 1 SCC 265 =  AIR 1987  SC 355;  People’s Union for Democratic Rights Thru.Its Secy.   vs.  Police Commissioner, Delhi Police Headquarters, (1989)  4  SCC 730 = 1989 (1) Scale 599;  SAHELI, a  Woman’s Resources  Centre vs.  Commissioner of Police, Delhi, (1990) 1  SCC  422  =  1989  (Supp.) SCR 488 =  AIR  1990  SC  513;

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Arvinder  Singh Bagga vs.  State of U.P., (1994) 6 SCC 565 = AIR  1995  SC 117;  P.Rathinam vs.  Union of  India,  (1989) Supp.   2 SCC 716;  In Re:  Death of Sawinder Singh  Grower, (1995)  Supp.   (4) SCC 450 = JT 1992 (6) SC 271 = 1992  (3) Scale  34;   Inder Singh vs.  State of Punjab, (1995) 3  SCC 702  =  AIR  1995 SC 1949;  D.K.  Basu vs.   State  of  West Bengal,  (1997)  1 SCC 416 = AIR 1997 SC 610;  Mrs.   Pritam Kaur Baryar vs.  State of Punjab, (1996) 7 Scale (SP) 11 and Paramjit Kaur vs.State of Punjab, (1996) 8 Scale (SP) 6.

     In  cases relating to custodial deaths, this Court has awarded  compensation  in  Nilabati  Behera  vs.   State  of Orissa,  (1993)  2 SCC 746 = 1993 (2) SCR 581 = AIR 1993  SC 1960;   State  of M.P.  vs.  Shyam Sunder Trivedi, (1995)  4 SCC  262  =  1995 (3) Scale 343;  People’s Union  for  Civil Liberties  vs.  Union of India, (1997) 3 SCC 433 = AIR  1997 SC  1203 and Kaushalya vs.  State of Punjab, (1996) 7  Scale (SP) 13.

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

     Damages were also awarded by this Court in Mrs.  Manju Bhatia  vs.  N.D.M.C., (1997) 6 SCC 370 = AIR 1998 SC 223  = (1997) 4 Scale 350.

     In N.Nagendra Rao & Co.  vs.  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.   But  the Crown was held immune on doctrine  of sovereign  immunity.  Since the doctrine has become outdated and  sovereignty  now vests in the people, the State  cannot claim any immunity and if a suit is maintainable against the officer  personally, then there is no reason to hold that it would not be maintainable against the State."

     The  difference  between  public and private  law  was again  examined by this Court in Nilabati Behera vs.   State of  Orissa  (supra).  Dr.  Anand, J.  (as His Lordship  then was)  in  his  separate  concurring Judgment  laid  down  as under:-.lm15

     "34.   The  public law proceedings serve  a  different purpose  than  the private law proceedings.  The  relief  of

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monetary  compensation, as exemplary damages, in proceedings under  Article 32 by this Court or under Article 226 by  the High   Courts,   for  established    infringement   of   the indefeasible  right  guaranteed  under  Article  21  of  the Constitution  is  a  remedy available in public law  and  is based  on  the  strict liability for  contravention  of  the guaranteed  basic  and indeafeasible rights of the  citizen. The  purpose  of public law is not only to  civilize  public power  but also to assure the citizen that they live under a legal  system  which  aims to protect  their  interests  and preserve their rights.  Therefore, when the court moulds the relief  by  granting  "compensation"  in  proceedings  under Article 32 or 226 of the Constitution seeking enforcement or protection  of  fundamental  rights, it does  so  under  the 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 law 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 right 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 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 decisions of this Court in the line of cases starting with Rudul Sah vs.  State of Bihar 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

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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."

     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.

     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 or damages payable to the petitioner or the petitioner  may  be  directed to approach the  Civil  Court. This proposition cannot be accepted.

     In  M.C.   Mehta & Anr.  vs.  Union of India  &  Ors., (1987) 1 SCC 395, this Court observed as under:-

     "7.   We  are also of the view that this  Court  under Article  32(1)  is free to devise any procedure  appropriate for  the  particular  purpose  of  the  proceeding,  namely, enforcement  of a fundamental right and under Article  32(2) of  the  court  has  the implicit power  to  issue  whatever direction,  order  or  writ is necessary in  a  given  case, including  all  incidental or ancillary power  necessary  to secure  enforcement of the fundamental right.  The power  of the  court  is  not  only  injunctive  in  ambit,  that  is, preventing  the infringement of a fundamental right, but  it is  also  remedial  in scope and provides relief  against  a breach  of  the  fundamental right  already  committed  vide Bandhua  Mukti Morcha case.  If the court were powerless  to issue  any  direction,  order  or  writ  in  cases  where  a fundamental  right  has  already been violated,  Article  32 would  be  robbed  of  all its efficacy,  because  then  the situatiuon  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

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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 socially  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.   So  also, this  Court  awarded  compensation  to  Bhim  Singh,   whose fundamental  right to personal liberty was grossly  violated by  the  State  of  Jammu and Kashmir.  If we  make  a  fact analysis of the cases where compensation has been awarded by this  Court, we will find that in all the cases, the 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."

     Thus,  where  public  functionaries are  involved  and matter relates to the violation of Fundamental Rights or the enforcement  of public duties etc., the remedy would lie, at the  option  of  the  petitioner,   under  the  public   law notwithstanding  that  damages  are also  claimed  in  those proceedings.

     The  decisions relied upon by Mr.  Parasaran,  namely, P.   Rathinam vs.  Union of India & Ors.(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.

     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.

     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

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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 or  a  public  authority  could be quashed by  an  order  of Certiorari  made on an application for judicial review where that  court  or  authority  acted  without  jurisdiction  or exceeded its jurisdiction or failed to comply with the rules of  natural  justice  or  where there was an  error  of  law apparent  on  the  face of the record or  the  decision  was unreasonable in the Wednesbury sense (that is, no reasonable person could have come to the 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.

     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).

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

     At  some  stage,  particularly between the  1920s  and 1960s, it was thought that prerogative orders of Certiorari, Prohibition  and Mandamus only lay against persons or bodies with  judicial or quasi judicial functions and did not 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 ERs  66.   The effect of this decision is that the judicial review lies not only against an inferior court or tribunal, but also against persons or bodies which perform public duties or functions.

     Thus,  judicial  review would lie against persons  and bodies  carrying out public functions.  But it would not lie

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against  a  person or body carrying out private law and  not public  law functions.  In such cases, the proper remedy  is by  way  of action for a declaration and, if  necessary,  an injunction.

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

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

     On  an application for judicial review, the Court  has power  to award damages to 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 53].  The application for  judicial review, if not made at the earliest, is liable to be dismissed for delay and laches.

     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 Govt.  or other public authorities  or  that their action was wholly arbitrary or oppressive in violation of  Article  14 or in breach of statutory duty and is not  a purely private matter directed against a private individual.

     Mr.  Parasaran next contended that allotment of Petrol outlets  by the 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.

     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 Edition, as under:-

     "He  (The  King) is not liable to be sued  civilly  or criminally  for a supposed wrong.  That which the  sovereign does  personally, the law presumes will not be wrong;   that which  the sovereign does by command to his servants, cannot be  a  wrong  in the sovereign because, if  the  command  is unlawful,  it  is  in  law no command, and  the  servant  is responsible  for the unlawful act, the same as if there  had been  no  command.  (See:  Tobin v.  The Queen (1864) 16  CB [N.S.]  310).  So the Crown was not liable in tort at common law  for  wrongs committed by its servants in the course  of employment  not even for wrongs expressly authorised by  it. (See:   Canterbury (Viscount) A.H.  General (1842) 1 Ph 306;

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High Commr.  for India & 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  (s.40),  or  affects   powers   or authorities  exercisable by virtue of the prerogative of the Crown  or  conferred  upon the Crown by  statute  (s.11[1]). Subject  to  this, the Act provides that the Crown shall  be subject  to  all those liabilities in tort to which,  if  it were  a person of full age and capacity, it would be subject (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 savings in respect of the Crown’s prerogative and statutory powers, the effect  of the Act in other respects, speaking generally, is to  abolish the immunity of the Crown in tort and to  equate the  Crown  with  a private citizen in matters  of  tortious liability."

     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 officers and servants.

     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.

     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

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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 Govt.   of  India Act,  1858 was passed by the British Parliament.  Section 68 of  the Act allowed the Secretary of the State in Council to sue  or be sued marking a departure from the common law rule that  no  proceedings,  civil or criminal,  could  be  filed against the Crown.

     In  spite of the above provision, the Supreme Court of Calcutta  in The Peninsular & Oriental Steamship  Navigation Co.   vs.   The Secretary of State for India 1868-69  Bombay H.C.  Reports Vol.  V.  Appendix-A P.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  enemey,  nor  for any act done by a  military  or  naval officer  or  by  any soldier or sailor,  whilst  engaged  in military  or  naval  duty, nor for any acts of  any  of  its officers or servants in the exercise of judicial functions."

     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 vs.  Hari Bhanji &  Anr.   ILR (1882)  5  Mad.  273 and the Bombay High Court in P.V.   Rao vs.  Khushaldas S.  Advani (1949) 51 Bombay Law Reporter 342 =  AIR  1949  Bombay 277 did not follow the  decision.   The decision  of the Bombay High Court was subsequently approved by  this Court in Province of Bombay vs.  K.S.  Advani  1950 SCR  621 = AIR 1950 SC 222 and it was clearly laid down that the  Govt.   would  also be liable for  Torts  committed  in exercise  of Sovereign powers except when the act complained of amounted to an act of State.

     Govt.   of  India Act, 1858 was replaced by the  Govt. of  India Act, 1915 and the provisions contained in  Section 65  of 1858 Act were retained in Section 32 of the 1915 Act. This  Act  was subsequently replaced by the Govt.  of  India Act,  1935  and in this Act the corresponding provision  was made in 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."

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     The  decision of this Court in Province of Bombay  vs. 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  estabishment of a just  economic  order industries  are  nationalised.  Public utilities  are  taken over  by the State.  The State has launched huge  irrigation and  flood  control schemes.  The production of  electricity has  practically become a Government concern.  The State has established  and  intends  to establish  big  factories  and manage  them.   The State carries on  works  departmentally. The  doctrine  of laissez faire - which leaves every one  to look  after himself to his best advantage has yielded  place to  the  ideal of a welfare State - which implies  that  the State   takes  care  of  those   who  are  unable  to   help themselves."

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

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

     ’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  activitiy  in question.’

     In  State of Rajasthan vs.  Mst.  Vidhyawati 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 Govt.  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

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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."

     The  course  of  justice,   insofar  as  the  tortious liability  of  the State is concerned, was disturbed by  the decision  of  this Court in Kasturi Lal Ralia Ram  Jain  vs. 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  property which was recovered from  his  possession could not be returned to him in its entirity inasmuch as the silver  was  returned but the gold could not be returned  as the Head Constable in charge of the Malkhana misappropriated it  and fled to Pakistan.  The firm filed a suit against the State  of  U.P.  for the return of the ornaments and in  the alternative  for compensation.  This Court, speaking through Gajendragadkar, CJ, observed as under :

     "The  act  of  negligence   was  committed  by  police officers  while dealing with the property of Ralia Ram which they  had seized in the exercise of their statutory  powers. Now,  the  power to arrest a person, to search him,  and  to seize  property found with him, are powers conferred on  the specified officers by statute and in the last analysis, they are  powers which can be properly characterised as sovereign powers,  and so, there is no difficulty in holding that  the act  which  gave rise to the present claim for  damages  has been committed by the employees of the respondent during the course  of their employment;  but the employment in question being   of  the  category  which   can  claim  the   special characteristic  of  sovereign  power, the  claim  cannot  be sustained."

     The   earlier   decision  of   this  Court   in   Mst. Vidyavati’s  case  (supra) was 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 (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 vs.   Memon Mahomed  Haji  Hasan AIR 1967 SC 1885 and Smt.   Basava  Kom Dyamogouda Patil vs.  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 vs.  State of Bihar (supra);  Bhim Singh vs.  State of J&K (supra), SAHELI, a Woman’s Resources Centre  vs.   Commr.   of Police, Delhi  (supra);   People’s Union  of Democratic Rights vs.  Police Commissioner,  Delhi (supra)  and Sebastin M.  Hongray vs.  Union of India (1984) 3 SCC 82 = AIR 1984 SC 1026, do not refer to the decision of this  Court  in  Kasturilal’s  case   (supra).   It  may  be

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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  ‘Soverign immunity’.  Reference may also be made to  the decision  of Privy Council in Maharaj vs.  Attorney  General of Trinidad & Tobago (No.2) (1978) 2 All ER 670 in which the appellant,  who  was a Barrister, was sentenced to  7  days’ imprisonment  by  a Judge of the High Court, which  was  set aside by the Privy Council in appeal.  The appellant, in the meantime,  applied  for  redress  under  Section  6  of  the Constitution  of Trinidad & 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.

     The  entire  case law was reviewed by R.M.  Sahai,  J. in  his illuminating judgment in N.  Nagendra Rao & Co.  vs. State  of A.P.  AIR 1994 SC 2663 = (1994) 6 SCC 205 in which the case of Neelabati Behera (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  it place either because of the ’financial instability of  the infant American States rather than to the  stability of  the  doctrine  theoretical foundation,’  or  because  of ’logical  and practical ground,’ or that ’there could be  no

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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."

     Reference  may  also be made to the decision  of  this Court  in Shyam Sunder vs.  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 vs.  Hospital Mazdoor  Sabha  AIR 1960  SC  610  and  Corporation of the City  of  Nagpur  vs. 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 vs.  The Justices of  the County  Berks  (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.

     For  the reasons stated above, we are of the view that the  allotment of petrol outlets by the petitioner cannot be treated  as  "act  of the State" and the  rule  of  immunity invoked  by  Mr.   Parasaran cannot be accepted.   The  next submission  of  Mr.   Parasaran  relates   to  the  tort  of misfeasance  in  public office which has been held  to  have been  committed by the petitioner and for which he has  been directed  to  pay Rs.50 lakhs as exemplary damages.   It  is contended  by Mr.Parasaran that the ingredients of the  tort of misfeasance in public office were not made out;  the rule of  exemplary damages was not properly invoked;  and in  any case,  the  amount  of  Rs.50 lakhs  was  arbitrarily  fixed without  there  being  any rational basis on  which  it  was computed.   It  was  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 or damages cannot  be

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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  Govt.   to  pay exemplary  damages to itself which is not possible under any system of law and, therefore, wholly erroneous.

     It  is contended that the error being apparent on  the face of the record, the judgment requires to be reviewed.

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

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

     "Tort  signifies an act which gives rise to a right of action,  being  a wrongful act or injury consisting  in  the infringement  of  a  right  created   otherwise  than  by  a contract.  Torts are divisible into three classes, according as  they consist in the infringement of a jus in rem, or  in the  breach  of  a duty imposed by law on a  person  towards another person, 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 damage to corporeal personal property or chattels;  or (ii) in the infringement of a patent, trade mark, copyright, etc.;  (d) slander of title;  (e) deprivation of service and consortium.

     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."  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 redressible by an  action  for unliquidated damages."

     Apart  from  tort which may be committed by a  private individual,  the officers of the Govt.  would also be liable in damages for their wrongful acts provided the act does not fall  within the purview of "act of the State." So also, the administrative   bodies  or  authorities,   which  deal   in administrative  matters and take decisions specially for the implementation  of  the Govt.  policies, have to act  fairly and  objectively  and may in some cases also be required  to

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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.

     In  Administrative Law by Sir William Wade, 7th  Edn., "misfeasasnce   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."

     (Emphasis supplied)

     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 vires, 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 prohibited the import of turkey  meat from  France and was held unlawful by the European Court  as being  in breach of Article 30 of the Treaty of Rome,  which is binding in British law under the European Communities Act

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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 malic as judges have often called it, seems now to be established as the decisive factor."

     (Emphasis supplied)

     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 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."

     Halsbury’s   Laws  of  England,   Vol  I(I)  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

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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 not peculiar to  public authorities.    There   exists  an   independent   tort   of misfeasance  by a public officer or authority which consists in  the  infliction  of loss by the deliberate  abuse  of  a statutory  power, or by 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."

     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  common  law, statutory or from  some  other source;

     (2) which is either (a) affected by malice towards the plaintiff or (b) the decision maker knows is unlawful;  and

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

     de Smith further says as under :

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

     Reference may also be made to the decision of the High Court  of Australia in Northern Territory vs.  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

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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."

     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,  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

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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."

     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  in 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 & Ors.  vs.   Ministry of  Agriculture  Fisheries & Food (1985) 3 All ER 585  (CA). In  Jones v.  Swansea City Council (1989) 3 All ER 162 (CA), it  was  held that 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:  Jones vs.  Swansea  City  Council (1990) 3 All ER 737 (HL).

     In Three Rivers District Council and Ors.  v.  Bank of England  (No.3),  (1996) 3 All ER 558, it was held that  the tort  of "misfeasance in public office" was concerned with a 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 suffered 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   an  intention  to  injure, although, as suggested by the majority in Northern Territory

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v  Mengel  (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 sufficent sense maliciously:   see Mengel 69 ALJR 527 at 554 per Deane J.

     (3)  For  the  purposes of the  requirement  that  the officer  knows that he 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 circumstance 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 sufficent  to support liability under the second limb of the tort.

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

     So far as malice is concerned, while actual malice, if proved, would render the defendant’s action both ultra vires and  tortious, it would not be necessary to establish actual malice  in every claim for misfeasance in public office.  In Bourgoin  SA vs.  Ministry of Agriculture, Fisheries & Food, (1985)  3  All ER 585 (CA) to which a reference has  already been  made above, the plaintiffs were French turkey  farmers who  had been banned by the Ministry from exporting  turkeys to  England  on the ground that they would  spread  disease. The  Ministry, however, subsequently conceded that the  true ground  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

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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.  Commr.   of Police  of  the Metropolis and others 1995 (2) All ER 1  (at pages  13 & 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.

     Tort   of  misfeasance  in   public  office  was  also considered  by  this Court in Lucknow Development  Authority vs.   M.K.   Gupta  (1994)  1 SCC  243.   Relying  upon  the Administrative  Law  by Prof.  Wade, exemplary damages  were allowed  to  a consumer who had initiated proceedings  under the  Consumer Protection Act, 1986.  The Court held that the officers  of  the  Lucknow Development  Authority  were  not immune  from  tortious liability and then proceeded  to  say 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 the  Act  could determine such amount if in its opinion  the consumer  suffered injury due to what is called  misfeasance of  the  officers  by the English Courts.  Even  in  England where  award  of exemplary or aggravated damages for  insult etc.   to  a  person  has  now been  held  to  be  punitive, exception  has  been  carved  out if the injury  is  due  to ‘oppressive,   arbitrary  or   unconstitutional  action   by servants  of the Government’ (Salmond and Heuston on the Law of  Torts).   Misfeasance in public office is  explained  by Wade in his book on Administrative Law thus :

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

     (Emphasis supplied)

     After  quoting  from  Wade,  the  Court  proceeded  to consider  the question of award of exemplary damages in  the light  of the decision in Cassell & Co.  Ltd.  v.  Broome  & Anr.   1972  (1) All ER 801 as also the earlier decision  in Rookes  v.   Barnard 1964 (1) All ER 367 and  other  English decision  including Ashby v.  White (1703)2 Ld Raym 938, and held  that  exemplary damages could be awarded  against  the

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officers of the Lucknow Development Authority.

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

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

     ‘There  is,  thus,  a  tort   which  has  been  called misfeasance  in  public office and which includes  malicious abuse  of  power, deliberate maladministration, and  perhaps also other unlawful acts causing injury.’

     With  the change in socio-economic outlook, the public servants   are   being   entrusted   with  more   and   more discretionary  powers  even in the field of distribution  of government  wealth  in  various  forms.  We take  it  to  be perfectly  clear, that if a public servant abuses his office either  by  an  act  of  omission  or  commission,  and  the consequence  of  that is injury to an individual or loss  of public  property,  an action may be maintained against  such public  servant.   No  public servant can say "you  may  set aside  an  order on the ground of mala fide but  you  cannot hold  me personally liable." No public servant can  arrogate to himself the power to act in a manner which is arbitrary."

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

     "He  made  allotments  in favour of relations  of  his personal  staff  under the influence of the staff on  wholly extraneous  considerations.   The allotments to the sons  of the  Ministers  were  only  to oblige  the  Ministers.   The allotments  to  the members of the Oil Selection Boards  and their/chairmen’s  relations have been done to influence them and  to  have favours from them.  All these  allotments  are wholly arbitrary, nepotistic and are motivated by extraneous considerations."

     The further finding is to the following effect :

     "A  Minister  who  is  the   executive  head  of   the department   concerned   distributes   these  benefits   and largesses.  He is elected by the people and is elevated to a position where he holds a trust on behalf of the people.  He has  to  deal with the people’s property in a fair and  just manner.  He cannot commit breach of the trust reposed in him by  the people.  We have no hesitation in holding that Capt. Satish  Sharma  in his capacity as a Minister for  Petroleum and Natural Gas deliberately acted in a wholly arbitrary and unjust  manner.   We  have no doubt in our mind  that  Capt. Satish  Sharma knew that the allottees were relations of his personal  staff,  sons  of   Ministers,  sons/relations   of Chairmen  and  members of the Oil Selection Boards  and  the members  of  the  Oil   Selection  Boards  themselves.   The allotments  made  by him were wholly mala fide and  as  such cannot be sustained."

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     The Court further found as under :

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

     The Court also found :

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

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

     "1.   Captain Satish Sharma was Minister of State  for Petroleum  from  January  8,1993  to   May  16,  1996.   The allotments  of  petrol  pumps  by   the  Minister  from  his discretionary  quota (that ultimately came to be  challenged in Writ Petition (Civil) No.  26 of 1995 on the basis of the August  11, 1995 news item in the Indian Express) related to the period 1993 to 1995.

     2.   It  is  submitted with utmost  respect  that  the finding of the malafides have been recorded in proceeding to which I was not a party.  These proceedings were defended by the  Central  Government.   In a non-adversarial  manner  by placing  all the facts before this Hon’ble Court and leaving it  to  this Hon’ble Court to adjudicate on the validity  of the said actions.  It is true that an opportunity to file an affidavit was given to me, if I so desired.  It is, however, submitted  that that opportunity was given in the context of deciding the Writ Petition which challenged the validity and correctness  of the allotments.  There was no prayer in  the Writ  Petition  making any personal claim against me  either

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civil  or  criminal  and the entire record of the  case  was placed  before this Hon’ble Court.  In addition,  affidavits were  filed  by  responsible  officers  of  the  Department, therefore, I did not avail the option to file any affidavit. The  respondent was ready and willing to leave the  question of  validity of the allotments made by him to be  determined by this Hon’ble Court on the basis of the entire record.  At that  stage,  I  had no notice that any relief  was  claimed against  me personally by any one or that I would be  called upon to face civil or criminal proceedings.

     I   respctfully   state   that  in   the   matter   of discretionary  allotments  based on  Compassionate  grounds, individual  assessment  and perception are bound  to  differ from person to person.  There is no material to suggest that I made any allotments for any pecuniary advantage or illegal gain.   Thus,  I submit that before deciding on my  personal liability  to  pay  compensation or face criminal  trial,  I should  be  permitted to place my version of the  facts  and circumstances.

     The legal issue of the personal liability of Ministers arising  out of abuse of executive powers under the Rules of Business  in contradistinction to statutory powers conferred upon  designated functionaries involves important  questions impinging  on  the  interpretation of the  constitution.   I respectfully  state that this matter should be dealt with by this Hon’ble Court under Article 145 (3).

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

     4.   The  judgment relies on observations  in  Lucknow Development  Authority  vs.  M.K.  Gupta [(1994) 1 SCC  243] for  holding that misfeasance in public offices is a part of the  law  of  tort.   It  is  submitted  that  the   Lucknow Development   Authority  case  arose   under  the   Consumer Protection    Act    wherein    there    was   a    specific aggrieved/injured  party, who claimed of injury/loss  caused to  him.  In the instant case, the question of damages  does not  arise at all, since there is no finding that I acted to the  prejudice  or  detriment  of  any  specific  person  in derogation  of my statutory (or constitutional) rights or in violation of any law, rule or even guideline.

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     5.   As  far as the proposed direction to  the  police authorities  is concerned, it is respectfully submitted that :

     (a) No offence u/s 405 or 406 of the IPC has been made out.

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

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

     The  Court by its judgment dated 4.11.1996 disposed of the matter as follows:

     "3.   Pursuant to the above-quoted direction, a  show- cause  notice  was issued to Capt.  Satish Sharma.   He  has filed affidavit in reply to the show-cause notice.

     4.    We  have  heard   Mr.   Salve,  learned  counsel appearing  for Capt.  Satish Sharma.  There are two parts of the  directions  quoted above.  This Court has  called  upon Capt.   Satish  Sharma to show cause why a direction be  not issued  to  the appropriate police authority to  register  a case  and  initiate  prosecution against  him  for  criminal breach of trust or any other offence under law.

     5.   The findings of this Court, quoted above, and the conclusions  reached  in  the Common Cause  case,  leave  no manner  of  doubt  that an investigation by  an  independent authority is called for in this case.  We, therefore, direct the Central Bureau of Investigation (CBI) to register a case against  Capt.   Satish Sharma in respect of the  allegation dealt  with  and the findings reached by this Court  in  the Common  Cause  case.  The CBI shall hold  investigation  and proceed  in accordance with law.  There shall be no limit on the  power,  scope and sphere of investigation by  the  CBI. We,  however,  make  it  clear that the  CBI  shall  not  be influenced  by  any observations made by this Court  or  the findings  reached  in  Common Cause case, for  reaching  the conclusion   as  to  whether  any   prima  facie  case   for prosecution/trial  is made out against Capt.  Satish Sharma. It  shall  have to be decided on the basis of  the  material collected and made available with the CBI as a result of the investigation.    We   direct  the   CBI  to  complete   the investigation  within  three months of the receipt  of  this order.   The  CBI shall file interim report to indicate  the compliance  of this order.  This shall be done by  20-1-1997 and  this matter shall be listed on 22-1-1997 before a Bench of which Mr.  Justice Faizan Uddin is a member."

     Thereafter  the Court proceeded to hear Mr.  Harish N. Salve  on  the  question of damages  and  after  considering certain  English  decisions  on the  question  of  exemplary

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damages  and  also the decision of this Court  in  Neelabati Behera  vs.   State of Orissa (1993) 2 SCC 746, in which  it was  laid down that the damages can be awarded by this Court in  a  proceeding under Article 32 of the Constitution,  the Court directed the petitioner to pay a sum of Rs.50 lakhs as exemplary   damages  to  the   Govt.   Exchequer,  with  the observation   that  since  the   property  with  which   the petitioner was dealing was Govt.  property, the Govt., which is  "By  the  people",  has to be  compensated.   The  Court further  directed the petitioner to deposit the amount  with the  Secretary, Ministry of Finance, Govt.  of India  within nine  months.   It was further provided that the amount,  if not paid, would be recoverable as arrears of land revenue.

     As Minister of State for Petroleum, the petitioner had made  allotments  from out of his discretionary quota.   The discretionary  quota is available to almost all Ministers of the  Govt.   of India.  This obviously is based on a  policy decision  to allow discretionary quota not only to the Prime Minister  but  also  to  other  Ministers  so  that  serious difficulties,  problems of disabilities or unemployment  may be overcome at the earliest by providing immediate help.

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

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

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

     UNION MINISTERS

     1.  Prime Minister :

     Directives  being  sent  to   various  Ministries  for deserving cases of Discretionary allotments, for out of turn House/DDA  Flat/Shops/Petrol  Pump/Gas Agencies/Rly  Station Stalls/Free  Air  Tickets/out  of turn Maruti  Car,  STD/ISD Booth/Out of Turn Telephone Connections/Gas Connections etc. PM  exercises discretion to sanction funds from PM’s  Relief Fund.

     2.  Minister for Communications

     Discretionary Allotments of :

     1.    Telephone  connections.   2.   Small   Telephone Exchanges.  3.  ISD/STD Booths.

     3.  Minister for Civil Aviation & Tourism

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     Discretionary Allotment of :

     1.   Free or Discounted International Air Tickets.  2. GSAs  for  AI  or Indian Airlines 3.  Out of Turn  seats  in IA/AI flights.  4.  Shops/Stalls in ITDC Hotels.

     4.  Minister for Chemical & Fertilizers

     Discretionary Allotment of :

     1.   Agencies  of IPCL/Public Sector Drug  Units.   2. Agencies for Fertilizer Public Sector Undertakings.

     5.  Minister for Coal

     Discretionary Allotment of :

     1.  Premium quality coal rakes.  2.  PSU Coal Dumps 3. Premium quality coal in thousand tons.

     6.  Minister for Defence

     Discretionary Allotments of :

     1.   Fire  Arms,  Rifles & Revolvers.   2.   Old  Army Vehicles meant for disposal.

     7.  Ministry of HRD

     Discretionary Powers of :

     1.   Admissions  in   Medical/Engg.   Colleges/Central Schools.  2.  Scholarships for study in India & Abroad.

     8.  Minister for Health & Family Welfare

     Discretionary Powers of :

     1.   Treatment of Patients abroad.  2.  Private  wards in AIIMS/Premier Govt.  Hospitals.  3.  Admission in Medical Colleges in India/Abroad.

     9.  Minister for Information & Broadcasting

     Discretionary Powers of :

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

     10.  Minister for Industry

     Discretionary Allotments of :

     1.  Maruti Cars/other cars

     11.    Minister  for  Food   &   Civil   Supplies/Food Processing

     Discretionary Allotments of :

     1.    Ration  shops.   2.    SKO/LDO   Agencies.    3. Allotment  of FCI wheat/Rice/Sugar to Pvt.  Industries.   4.

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Beer Licences.

     12.  Minister for Petroleum & Natural Gas

     Discretionary Allotments of :

     1.  Gas Connections.  2.  Petrol Pumps & Gas Agencies.

     13.  Minister for Railways

     Discretionary Allotments of :

     1.   Kiosks/Stalls  at Railway Stations.  2.  Free  or discounted Railway passes/ Tickets for 1 year or more years. 3.  Berths in all trains.  4.  Railway Rakes.

     14.  Minister for Surface Transport

     Discretionary Powers of :

     1.   Out of turn Berthing of National &  International Ships  at  all Ports across country.  2.  Permits for  Buses etc.

     15.  Minister for Urban Developments

     Discretionary Allotment of :

     1.  DDA Flats/Houses.  2.  Shops in DDA/NDMC 3.  Plots in DDA.

     MEMBERS OF PARLIAMENT

     1.  100 Gas Connections for Discretionary Allotments.

     2.    15  Telephone   Connections  for   Discretionary Allotments."

     The above list will show that not only to the Minister of Petroleum, but beginning from the Prime Minister, down to other   Ministers,  including  Members   of  Parliament,   a discretionary quota has been made available to them.

     So  far as the Minister of Petroluem is concerned, the allotments  made  by the petitioner were challenged in  this Court in Centre for Public Interest Litigation vs.  Union of India  & Ors.  (Writ Petition (C) No.  886 of 1993,  decided on  March  31,  1995) [since reported in 1995  Supp.(3)  SCC 382],  but  the Court did not set aside or quash any of  the allotments and instead framed guidelines for the exercise of discretionary  allotment  of petroleum  products’  agencies. These  guidelines  were settled with the assistance  of  the Attorney  General  who  submitted a draft  of  the  proposed guidelnes.   After  considering  the guidelines,  the  Court directed as under:

     "The  following  to  be inserted in  the  brochure  of guidelines   for  selection  of   dealers  through  the  Oil Selectlon Board:

     Discretionary Quota

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     A  discretionary quota will be earmarked for deserving cases  on genuine compassionate grounds.  This quota will be outside  the 100 point roster of marketing plans and outside the purview of the Oil Selection Boards.

     Candidates  will  submit a proper application  to  the Ministry, giving their complete bio-data indicating the name of  spouse/father,  occupation,  permanent  address,  annual income for the preceding year in respect of self, spouse and parents  from  all  sources enclosing  documentary  evidence wherever  necessary  in  support  of their  request  and  an affidavit verifying the given facts.

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

     (i)  spouse  (ii)  father/mother  (iii)  brother  (iv) son/daughter-in-law."

     Then the Court directed as under :

     "The  above-quoted  norms/guidelines  etc.   shall  be followed  by  the  Central  Government in  making  all  such discretionary  allotments  of retail outlets  for  petroleum products,  LPG Dealership and SKO Dealership, hereafter.   A copy  of this order be provided to every oil company by  the Central Government for general information."

     We  have  not  reproduced the  general  guidelines  or general  conditions or, for that matter, the procedure fixed by  the  Court  for allotment of petrol  outlets,  but  have reproduced  only  that  portion which  has  been  considered necessary  by us for disposal of this case as they relate to discretionary quota.

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

     Significantly,  it  is  not even  suggested  that  the guidelines  issued  by the Court in 1995 Supp.  (3) SCC  382 were violated in any subsequent allotment or that allotments

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were made in excess of the quota after that judgment.

     In  a  case relating to  manufacturer’s  discretionary quota  concerning  Maruti-800, this Court had to  intervene. The then Attorney General who happened to be none other than Mr.  K.Parasaran, arguing before us as Senior Counsel today, was  requested by the Court to provide the draft  guidelines which was done and the guidelines were approved by the Court and  the  Court  fixed the guidelines for  the  exercise  of manufacturer’s  five per cent discretionary quota concerning allotment of ‘Maruti 800’ cars.  (See:  Ashok K.  Mittal vs. Maruti Udyog Ltd.& Anr.  (1986) 1 SCR 585).  While conceding discretionary  quota  to the manufacturers, the Court  fixed the  guidelines for regulating the allotments of Maruti cars out  of discretionary quota to various customers falling  in the  category  of Defence Forces, Judiciary,  Constitutional Heads, MPs, etc.

     Mr.Gopal   Subramaniam,   learned    Senior   Counsel, appearing  as  Amicus  Curiae in the case and who,  we  must record,  equally  matched  the  forensic skill  of  Mr.   K. Parasaran   and  rendered  invaluable   assistance  to   us, contended  that it was not merely a matter of  discretionary quota  which was the basis of the judgment under review, but the arbitrary manner, in which the discretion was exercised, which  ultimately  resulted  in  the  quashing  of  all  the allotments  made  by  the petitioner who was found  to  have allotted  the petrol pumps not only to the relatives of  his personal  staff,  but  also to the sons of Chairmen  of  Oil Selection  Boards  and  even  to  the  members  of  the  Oil Selection  Boards and, therefore, the Court had rightly held the  exercise  of discretion to be motivated, arbitrary  and for  extraneous  considerations.  Since this question  again turns on the merit of the allotments made by the petitioner, we would not look into it.  We have mentioned the philosophy of   discretionary  quota  being   made  available  to   the Ministers, only as a prelude to our decision on the question whether  on  the facts of this case the petitioner could  be held  to  have committed the tort of misfeasance  in  public office.   The basis of the finding recorded in the  impugned judgment  on this question is the decision of this Court  in Lucknow  Development Authority’s case (supra) which did  not consider  even the basic elements which constitute the  tort of misfeasance which we have already discussed above.

     The whole proceedings were initiated on the basis of a Press report which was brought to the notice of the Court by Mr.  H.D.Shourie, Director, Common Cause whose Writ Petition was already pending and it was on that basis in that pending Writ  Petition that the Court took cognizance of the matter. The  allotments were made by the petitioner in his  capacity as  Minister  of State for Petroleum and Natural Gas as  and when  an  application  was made by separate  and  individual persons.   There was none to compete with that person.   The individual  concerned would approach the petitioner and  the petitioner, perhaps, on being satisfied with the contents of the application, as also the need for a petrol outlet in the area,  make  the  allotment.   Had   there  been  any  other applicant   for  the  same  petrol   outlet  for  which   an application  was made to the Minister, the question that  he deliberately  made  the allotment in favour of one so as  to injure  the other person would then have positively  arisen. The  petitioner cannot be said to have made the allotment in favour  of one out of malice towards the other as there  was none else to contest or compete with the claim of the person

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who  made  the application for allotment.  Nor could  it  be said that the petitioner made the allotment of petrol outlet in  favour  of  the applicant with the knowledge  that  such allotment  was  likely to injure the interest of  any  other person.

     The  petitioner  before the Court was "Common  Cause". It  was  a  registered  Society.   It was  not  one  of  the applicants  for allotment of petrol outlet.  Had the "Common Cause"  approached the Civil Court for damages on account of tort  of  misfeasance in public office, its suit would  have been  dismissed  on  the ground that it was not one  of  the applicants  for  a petrol outlet;  its own interest was  not injured  in any way nor had the petitioner made allotment in favour  of  one  of the applicants maliciously or  with  the knowledge  that  the  allotment would  ultimately  harm  the "Common  Cause".  How could then a finding of commission  of misfeasance  in public office by the petitioner be  recorded in  proceedings  under  Article  32 and  that  too,  at  the instance  of "Common Cause" on the basis of a Press  report? Mr.   Gopal  Subramaniam contended that "Common  Cause"  was justified  in filing the petition under Article 32 in Public Interest  to expose the wanton way in which allotments  were made   by   the  petitioner.   To  that   extent,   Mr.Gopal Subramaniam  is  right.  The Court has already  quashed  the fifteen  allotments  made by the petitioner in view  of  the arbitrary  exercise  of power by him.  But the Court went  a step further and held that petitioner had committed the Tort of  Misfeasance  in  Public  Office  and  awarded  exemplary damages.  It is this aspect which we are examining and it is in this context that we say that "Common Cause" not being an applicant  for  allotment of a Petrol outlet could not  have obtained a finding in the Civil Suit that the petitioner had committed the Tort of Misfeasance in Public Office.

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

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

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end here.

     It  cannot be ignored that the allotments made by  the petitioner  under the discretionary quota were challenged in this  Court  but  the  Court did not  interfere  with  those allotments  and  instead settled the guidelines  for  future allotments.   It  is not alleged nor has it been found  that any  allotment was made in violation of the guidelines.   It cannot also be ignored that the petitioner is not alleged to have  intereferred  with any allotment made through the  Oil Selection  Boards or the process of selection carried out by the Boards.

     At  this  stage,  Mr.    Gopal  Subramaniam  drew  our attention  to the following passage from the judgment  under review :

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

     and  contended that the Court itself had in mind  that there  were  others  equally  eligible to  whom  the  Petrol outlets  could  have been allotted.  He specially  drew  our attention  to the portion underlined above.  It is true that there   are  millions  of   poor,  unemployed,  educated  or uneducated  young men, who might have deserved  preferential treatment, but all of them had not approached the petitioner nor  the  petitioner  was  expected  to  know  all  of  them personally.   If  an  advertisement were to  be  issued  and applications  were  to  be invited for allotment  of  Petrol outlets  on  the basis of auction, it would still  not  have been possible for the millions of poor or unemployed persons to  have applied for allotment or to participate in the bid. Auction  is usually held to augment the revenue.  Physically handicapped,  poor,  unemployed, illiterate youth cannot  be expected to participate in the auction and offer their bids. Moreover,  this  would  be  contrary   to  the  concept   of discretionary quota, the main purpose of which is to provide immediate  relief  to the most needy.  Even  the  guidelines settled  by  this Court do not provide for  allotment  being made by public auction.

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

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

     "Damages",  as defined by Mcgregor "are the  pecuniary compensation,  obtainable  by  success in an action,  for  a wrong  which  is either a tort or a breach of contract,  the compensation  being  in  the  form of a lump  sum  which  is awarded  unconditionally."  This definition was  adopted  by Lord  Hailsham  L.C.  in Broome v.  Cassell & Co.  (1971)  2 All  ER  187.  The definition in Halsbury’s Laws of  England (4th  Edition),  Volume  12, Para 1102, is  similar  to  the definition set out above.

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

     "How  is  anybody  to measure pain  and  suffering  in moneys  counted?   Nobody  can  suggest   that  you  can  by arithmetical  calculation establish what is the exact sum of money  which  would represent such a thing as the  pain  and suffering  which  a  person has undergone by  reason  of  an accident...But  nevertheless  the law recognises that  as  a topic upon which damages may be given."

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

     In a suit for damages under the Law of Tort, the court awards  pecuniary  compensation after it is proved that  the defendant  committed  a  wrongful act.  In such  cases,  the court usually has to decide three questions:-

     1.   Was the damage alleged caused by the  defendant’s wrongful  act?  2.  Was it remote?  3.  What is the monetary

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compensation for the damage?

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

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

     As pointed out earlier, the primary object of award of damages  is to compensate the plaintiff for the harm done to him,  while the secondary object is to punish the  defendant for  his  conduct  in inflicting the  harm.   The  secondary object  can  also  be achieved in awarding, in  addition  to normal  compensatory  damages, damages which  are  variously called  as  exemplary damages, punitive damages,  vindictive damages  or retributory damages.  They are awarded  whenever the   defendant’s  conduct  is   found  to  be  sufficiently outrageous  to  merit  punishment, for  example,  where  the conduct discloses malice, cruelty, insolence or the like.

     It  will  thus  be seen that in awarding  punitive  or exemplary  damages, the emphasis is not on the plaintiff and the  injury  caused  to him, but on the  defendant  and  his conduct.

     Exemplary Damages made their appearance on the English legal  scene  in 1760s when in two cases, namely Huckle  vs. Money  and John Wilkes vs.  Wood, (1763) 2 Wils.  KB 205 and (1763) Lofft 1 respectively, exemplary damages were awarded. These cases were followed by two other cases, namely, Benson v.   Fredrick  (1766) 3 Burr.  1845 relating to the tort  of assault  and  Tullidge  vs.   Wade (1769)  3  Wils.   KB  18 relating  to  the tort of seduction, and in both the  cases, exemplary   damages   were   allowed.   Exemplary   damages, therefore,  became a familiar feature of the Law of Tort and were  even awarded in cases relating to trespass to land and trespass to goods.

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

     "These  authorities convince me of two things.  First, that  your lordships could not without a complete  disregard of  precedent,  and  indeed  of statute,  now  arrive  at  a determination  that  refused  altogether  to  recognise  the exemplary  principle.   Secondly,  that  there  are  certain

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categories  of cases in which an award of exemplary  damages can  serve  a useful purpose in vindicating the strength  of the  law,  and thus affording a practical justification  for admitting  into  the  civil  law  a  principle  which  ought logically to belong to the criminal.....I am well aware that what  I am about to say will, if accepted, impose limits not hitherto  expressed  on  such  awards   and  that  there  is powerful,  though not compelling authority for allowing them a wider range."

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

     "(1)  where  there has been oppressive,  arbitrary  or unconstitutional action by the servants of the government;

     (2)  where the defendant’s conduct has been calculated by  him  to  make  a  profit   which  may  well  exceed  the compensation payable to the plaintiff;  and

     (3)  where  such damages are expressly  authorised  by statute."

     The principles laid down in Rookes v.  Barnard (supra) were  followed  in five other cases in England out of  which four  were  libel actions, including McCarey v.   Associated Newspapers  Limited (1965) 2 QB 86 = (1964) 3 All ER 947 and Broadway Approvals Limited v.  Odhams Press Limited (1965) 2 All ER 523.

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

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

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

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

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underwrite you.’

     The  author then submitted the book for publication to Cassell  &  Co.  Ltd., which praised the book for its  "very robust  view  of libel dangers".  Cassell thought  that  the amount  of profit which he would earn by publishing the book would  far  exceed the amount of damages which he  would  be required  to  pay in an action for libel.   As  anticipated, action  for libel was instituted against Cassell &  Company. At  the  trial,  neither the author nor the  publisher  gave evidence.   Every  witness  who  was  called  supported  the plaintiff.   The jury awarded compensatory damages of  Pound 1,000  in  respect of the proof copies and Pound  14,000  in respect  of  the hardback edition, and exemplary damages  of Pound 25,000.

     The  defendants  appealed.  In dismissing the  appeal, the  Court  of Appeal considered the judgment in  Rookes  v. Barnard  and speaking through Lord Denning, M.R.  said  that Lord Devlin,

     ’threw  over  all  that we ever knew  about  exemplary damages.   He knocked down the common law as it had  existed for  centuries.  He laid down a new doctrine about exemplary damages.’

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

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

     He gave four reasons :

     (a)  the  common law on the subject had been  so  well settled  before  1964 that it was not open to the  House  of Lords to overthrow it;

     (b) counsel who had appeared in Rookes v.  Barnard had not argued the point, and indeed had accepted the common law as it was then understood;

     (c)  contrary to what Lord Devlin had said, there were two  previous  decisions  of the House  of  Lords  approving awards of exemplary damages;  and

     (d)  the doctrine laid down by Rookes v.  Barnard  was "hopelessly illogical and inconsistent".  .lm10

     Lord Denning further observed:-

     "All  this  leads me to the conclusion that,  if  ever there  was  a  decision  of the House  of  Lords  given  per

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incuriam,  this was it.  The explanation is that the  House, as  a matter of legal theory, thought that exemplary damages had  no place in the civil code, and ought to be  eliminated from  it;  but, as they could not be eliminated  altogether, they  ought  to  be confined within the  strictest  possible limits,  no  matter how illogical those limits were.....   I think  the difficulties presented by Rookes v.  Barnard  are so  great the judges should direct the juries in  accordance with the law as it was understood before Rookes v.  Barnard. Any attempt to follow Rookes v.  Barnard is bound to lead to confusion."

     Matter  went  up in appeal before the House of  Lords. (Cassell  &  Co.  Ltd.  vs.  Broome & Anr.  (1972) 1 All  ER 801  = 1972 A.C.  1027 ).  Lord Hailsham L.C.  did not agree with  the Court of Appeal and held that Rookes vs.   Barnard (supra) was correctly decided.  All the observations of Lord Denning  including  that Rookes v.  Barnard was decided  per incuriam were diluted, rather overruled.

     It  is in this background that category (2) set out by Lord  Devlin was specified.  Cassell & Company had published the  book in spite of the knowledge that an action for libel was  likely to be instituted against them.  They were  fully conscious  that  damages were likely to be  awarded  against them  for publishing that book.  But they published the book as  they  thought that the book would bring them  much  more money  than  what they would be required to pay as  damages. If  it  is  with  this  motive  that  a  tort  is  purposely committed,  it  would be a fit case for award  of  exemplary damages.

     In  spite  of this decision, the  controversy  whether punitive or exemplary damages should be allowed, still rages almost internationally and remains unresolved.  It continues to  be  debated even in England, whether  Exemplary  Damages should  be  allowed in the pre-Rookes v.  Barnard manner  or only in those exceptional cases which have been indicated in Rookes v.  Barnard.

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

     ".....where  one man is more powerful than another, it is  inevitable that he will try to use his power to gain his ends;  and if his power is much greater than the other’s, he might,  perhaps, be said to be using it oppressively.  If he uses  his  power  illegally, he must of course pay  for  his illegality  in  the  ordinary  way;  but he  is  not  to  be punished  simply  because he is the more powerful.   In  the case  of the government it is different, for the servants of the  government are also the servants of the people and  the use  of their power must always be subordinate to their duty of service."

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     If  we were to apply the rule in Rookes v.  Barnard as upheld  in  Cassell  &  Co.    Ltd.   vs.   Broome   (supra) invariably  and  unhesitatingly and were to award  exemplary damages  in  every case involving Govt.  officers  or  Govt. servants, the result would be appalling.

     Executive,  under the Constitution, consists of  Prime Minister,  Cabinet  Ministers, Ministers of State and  Civil Services  comprising of high administrative officers on  the top  down  to the clerical level.  They have as important  a role  to  play  in  the governance of  the  country  as  the Judiciary  or  Legislature.  The Executive, in  running  the administration  of the country, should not be cowed down and should  be  allowed  to  have full  confidence  in  its  own existence so that its decision-making process is not, in any way,   affected.   They  must   feel  independent  and  keep themselves  in  an  excellent  frame of  mind  so  that  the administrative  files  are cleared in time and the  Officers dealing  with  those files are not hesitant even  in  taking bold  decisions  which  have sometimes to be  taken  in  the interest  of  administration.  It is true that the  fear  of being  proceeded  against  in  a court of law  for  tort  of misfeasance in public office may keep them on the right path and  they  may not falter, but there is already the fear  of departmental  action or proceedings being initiated  against them  departmentally which itself is a safeguard for  proper administration.   Departmentally,  they are  answerable  for their  lapses;   Ministers,  or, for that matter,  even  the Government  is  answerable  to  Parliament.   If  they  were constantly  under  the  fear or threat  of  being  proceeded against  in  a court of law for even slightest of  lapse  or under  constant  fear  of exemplary  damages  being  awarded against  them, they will develop a defensive attitude  which would not be in the interest of administration.

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

     "...the  prospect  of  claims would have  a  seriously inhibiting  effect  on the work of his department.  A  sound judgment  would  be  less  likely to  be  exercised  if  the Commissioner were to be constantly looking over his shoulder at  the  prospect of claims against him, and his  activities would be likely to be conducted in a detrimentally defensive frame  of mind..  Consciousness of potential liability could lead to distortions of judgment....".

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

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

     "After  examining  all the facts and circumstances  of

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

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

     Right  to access to this Court under Article 32 of the Constitution  is  a fundamental right.  The Court  has  been given  the  power  to issue directions or orders  or  writs, including  writs  in the nature of habeas corpus,  mandamus, prohibition,  quo-warranto and certiorari, whichever may  be appropriate,  for the enforcement of the fundamental rights. Obviously,  the fundamental rights would be enforced against the  Govt.   or its executive or administrative officers  or other  public bodies.  It is in the matter of enforcement of fundamental  rights  that the Court has the right  to  award damages to compensate the loss caused to a person on account of  violation  of his fundamental rights.  The decisions  in which  orders  have  been passed by this Court  for  damages under  Article  32  of  the Constitution  for  violation  of fundamental  right  coupled  with, in some  cases,  tortious liability,  have  already been specified above.   The  State itself  cannot  claim  the  right of  being  compensated  in damages  against  its officers on the ground that  they  had contravened or violated the fundamental rights of a citizen.

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

     This  cannot  be accepted.  The whole thing has to  be examined  in  the context of Article 32 of the  Constitution under  which  relief to a person or citizen can  be  granted only   against  Union  of  India  or  the  State  or   their Instrumentalities  but  the State cannot legally claim  that since  one  of  its Ministers or Officers had  violated  the

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fundamental rights of a citizen or had acted arbitrarily, it should  be compensated by awarding exemplary damages against that officer or Minister.

     In  Rookes v.  Barnard (supra), it was pointed out  by Lord  Devlin  that  a  plaintiff  cannot  recover  exemplary damages unless he is the victim of punishable behaviour.  We have already pointed out that in the instant case, there was no  plaintiff.  The petitioner, Common Cause, cannot be said to  be  a  plaintiff nor can it claim to have  suffered  any damage or loss on account of the conduct of the petitioner.

     Lord   Devlin  further  pointed   out  that  award  of exemplary  damages  should be moderate.  Some of the  awards that the jury had made in the past, seemed to him, to amount to a greater punishment than the punishment which was likely to  be incurred if the conduct were criminal.  It would be a punishment  imposed without the safeguard which the criminal law  gives  to  an  offender.    Lord  Devlin  had  a  third consideration also in mind which related to the means of the party.    Obviously,  a  small   exemplary  award  would  go unnoticed  by a rich defendant, while even a moderate  award might  cripple a poor defendant.  The conduct of the parties throughout   the  proceedings  would   also  be  a  relevant consideration in assessing exemplary damages.

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

     Let  us now examine the direction for investigation by the  C.B.I.  into the offence of "criminal breach of  trust" or "any other offence."

     This  direction obviously consists of two parts :  (a) Investigation  by  the C.B.I.  into the offence of  criminal breach  of trust;  and (b) Investigation by the C.B.I.  into any other offence.  We will take up the first part first.

     The  basis for the direction relating to investigation into  the  offence  of "criminal breach of  trust"  are  the following observations of the Court :

     (a)  "A  Minister  who is the executive  head  of  the department   concerned   distributes   these  benefits   and largesses.  He is elected by the people and is elevated to a position where he holds a trust on behalf of the people.  He has  to  deal with the people’s property in a fair and  just manner.  He cannot commit breach of the trust reposed in him by the people.

     (b)  The  allotments  have been made in  a  cloistered manner.   The  petrol pumps -- public property -- have  been doled out in a wholly arbitrary manner."

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     These  observations indicate that the Court was of the opinion  that a person on being elected by the people and on becoming  a  Minister holds a sacred trust on behalf of  the people.   This,  we may venture to say, is  a  philosophical concept  and  reflects  the image of virtue in  its  highest conceivable  perfection.  This philosophy cannot be employed for  determination  of  the offence of "criminal  breach  of trust"  which is defined in the Indian Penal Code.   Whether the offence of "criminal breach of trust" has been committed by  a  person has to be determined strictly on the basis  of the  definition of that offence set out in the Penal Code to which we would advert a little later.

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

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

     The matter may be examined from another angle.

     Election  to the State Legislature or the House of the People are held under the Constitution on the basis of adult suffrage.   On being elected as a Member of the  Parliament, the  petitioner  was  inducted as Minister  of  State.   The Department  of  Petroleum and Natural Gas was  allocated  to him.   Under  the allocation of business rules, made by  the President  of India, the distribution of petroleum products, inter  alia,  came to be allocated to the petitioner.   This allocation  of  business under the Constitution is done  for smooth  and  better administration and for  more  convenient transaction  of  business of Government of India.   In  this way,  neither  a  "trust", as ordinarily  understood  or  as defined  under  the Trust Act, was created in favour of  the petitioner nor did he become a "trustee" in that sense.

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     In  Tito vs.  Waddell (No.2), 1977 (3) All ER 129, the question  of Crown’s status as a trustee was considered  and it was laid down:-

     "I  propose  to  turn at once to the position  of  the Crown  as trustee, leaving on one side any question of  what is  meant  by the Crown for this purpose;  and I  must  also consider  what  is meant by ‘trust’.  The word is in  common use  in  the  English  language, and  whatever  may  be  the position  in this court, it must be recognised that the word is often used in a sense different from that of an equitable obligation  enforceable  as such by the courts.  Many a  man may be in a position of trust without being a trustee in the equitable   sense;   and  terms   such  as  ‘brains  trust’, ‘anti-trust’, and ‘trust territories’, though commonly used, are  not understood as relating to a trust as enforced in  a court  of  equity.   At  the same time,  it  can  hardly  be disputed  that a trust may be created without using the word ‘trust’.   In every case, one has to look to see whether  in the  circumstances of the case, and on the true construction of  what  was  said and written, a sufficient  intention  to create a true trust has been manifested.

     When  it  is alleged that the Crown is a  trustee,  an element  which  is  of special importance  consists  of  the governmental powers and obligations of the Crown;  for these readily  provide an explanation which is an alternative to a trust.   If  money or other property is vested in the  Crown and is used for the benefit of others, one explantion can be that  the  Crown  holds on a true trust  for  those  others. Another explantion can be that, without holding the property on  a  true trust, the Crown is  nevertheless  administering that  property  in the exercise of the Crown’s  governmental functions.  This latter possible explanation, which does not exist  in  the  case  of an ordinary  individual,  makes  it necessary  to  scrutinise  with greater care the  words  and circumstances which are alleged to impose a trust."

     Many  earlier  decisions  were relied  upon  and  with reference  to an earlier decision reported in (1880) 15 Ch D 1, it was observed as under:-.lm15

     "In the Court of Appeal, this decision was unanimously reversed.   The court held that no trust, ‘in the sense of a trust  enforceable  and cognizable in a Court of  Law’,  has been  created,  despite the use of the word ‘trust’  in  the royal   warrant:   see  per   James  LJ.   Furthermore,  the Secretary  of State for India in Council, though by  statute made  capable of suing and being sued in that name, had  not been made a body corporate.  All that had been done had been to  provide  that the Secretary of State for the time  being should be the agent of the Crown for the distribution of the property.   James  LJ regarded the consequences  of  holding that  there  was  a trust enforceable in the courts  as  ‘so monstrous  that  persons would probably be startled  at  the idea’.   He  referred to matters such as the right of  every beneficiary  to sue for the administration of the trust  and have  the accounts taken, and ‘imposing upon the officer  of State  all the obligations which in this country are imposed upon  a  person  who chooses to accept a  trust’.   He  also emphasised  the  words  at the end of the Royal  Warrant  as showing clearly that questions were to be determined, not by

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the  courts, but by the Secretary of State, with an ultimate appeal  to  the Treasury, as advising the Queen.   Baggallay and  Bramwell  LJJ delivered concurring judgments, with  the latter   emphasising  the   ‘monstrous  inconvenience’   and ‘enormous  expense  of  litigation’ if there  were  a  trust enforceable by the courts, so that ‘one should be reluctant, even  if the words were much stronger than they are, to hold that there is a trust’.

     The  House of Lords [(1882) 7 App Cas 619] unanimously affirmed  the Court of Appeal.  In the leading speech,  Lord Selborne  LC attahced some weight to the words in the  Royal Warrant being ‘the Secretary of State for India in Council’, and  ‘for the time being’, instead of his being described by his personal name, as indicating that he was not intended to be  a trustee in the ordinary sense, but was intended to act as  a high officer of State.  After discussing the Order  in council,  Lord  Selbourne  LC quoted the part of  the  Royal Warrant which contained the words ‘in trust for the use of’, and said:

     ‘Now  the  words "in trust for" are  quite  consistent with,  and indeed are the proper manner of expressing, every species  of trust-a trust not only as regards those  matters which  are the proper subjects for an equitable jurisdiction to administer, but as respects higher matters, such as might take   place   between  the   Crown  and   public   officers discharging,  under  the directions of the Crown, duties  or functions  belonging to the prerogative and to the authority of  the  Crown.  In the lower sense they are matters  within the jurisdiction of, and to be administered by, the ordinary Courts  of Equiry;  in the higher sense they are not.   What their  sense  is  here, is the question  to  be  determined, looking  at  the  whole  instrument and at  its  nature  and effect."

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

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

     "405.  Criminal breach of trust.

     Whoever,  being in any manner entrusted with property, or   with   any   dominion    over   property,   dishonestly misappropriates or converts to his own use that property, or dishonestly  uses or disposes of that property in  violation of  any direction of law prescribing the mode in which  such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust,  or  wilfully  suffers  any other person  so  to  do, commits ’criminal breach of trust’."

     A  trust contemplated by Section 405 would arise  only when  there  is an entrustment of property or dominion  over property.   There has, therefore, to be a property belonging to  someone which is entrusted to the person accused of  the offence  under  Section  405.  The entrustment  of  property creates  a trust which is only an obligation annexed to  the

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ownership  of  the property and arises out of  a  confidence reposed  and  accepted by the owner.  This is what has  been laid  in  The State of Gujarat v.  Jaswant Lal Nathalal  AIR 1968 SC 700.  In Rashmi Kumar vs.  Mahesh Kumar Bhada (1997) 2  SCC  397, the essential ingredients for establishing  the offence  of criminal breach of trust, as defined in  Section 405, have been spelt out as follows:

     "(i)  entrusting any person with property or with  any dominion over property;

     (ii) the person entrusted dishonestly misappropriating or  converting to his own use that property;  or dishonestly using  or  disposing of that property or wilfully  suffering any  other person so to do in violation of any direction  of law  prescribing  the  mode  in which such trust  is  to  be discharged,  or  of  any legal contract  made  touching  the discharge of such trust."

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

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

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

     The  word  "property", used in Section 409, IPC  means the  property which can be entrusted or over which  dominion may  be  exercised.  This Court in R.K.  Dalmia  vs.   Delhi Administration,  1963  (1) SCR 253 = AIR 1962 SC 1821,  held that the word "property", used in Section 405 IPC, has to be

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interpreted  in  wider sense as it is not restricted by  any qualification  under Section 405.  It was held that  whether an  offence  defined in that Section could be said  to  have been committed would depend not on the interpretation of the word "property" but on the fact whether that particular kind of  property  could be subject to the acts covered  by  that Section.   That  is to say, the word "property" would  cover that  kind  of  property with respect to which  the  offence contemplated in that Section could be committed.

     Having regard to the facts of the case discussed above and  the  ingredients of the offence  constituting  criminal breach  of trust, as defined in Section 405, or the  offence as  set  out in Section 409 IPC, we are of the opinion  that there  was  no case made out against the petitioner for  any case  being  registered  against  him on the  basis  of  the Judgment  passed by this Court nor was there any occasion to direct an investigation by the CBI in that case.

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

     "Right  to  Life",  set  out   in  Article  21,  means something  more  than  mere survival  or  animal  existence. (See:   State of Maharashtra vs.  Chandrabhan Tale, AIR 1983 SC  803 = (1983) 3 SCC 387 = 1983 (3) SCR 327).  This  Right also  includes the right to live with human dignity and  all that  goes  along with it, namely, the bare  necessities  of life  such as adequate nutrition, clothing and shelter  over the  head and facilities for reading, writing and expressing oneself  in differ forms, freely moving about and mixing and commingling  with  fellow  human   beings.   [See:   Francis Coralie  Mullin vs.  Administrator Union Territory of Delhi, AIR 1981 SC 746 = (1981) 1 SCC 608 = 1981 (2) SCR 516;  Olga Tellis & Ors.  vs.  Bombay Municipal Corporation & Ors., AIR 1986  SC  180  (paras 33 and 34) = (1985) 3 SCC 545  =  1985 Supp.   (2) SCR 51;  Delhi Transport Corporation vs.  D.T.C. Mazdoor Congress & Ors., AIR 1991 SC 101 (paras 223, 234 and 259)  = (1991) Supp.  1 SCC 600 = 1990 Supp.  (1) SCR  142]. In  Kharak Singh vs.  State of U.P., AIR 1963 SC 1295 = 1964 (1)  SCR 332, domiciliary visit by the Police was held to be violative of Article 21.

     A man has, therefore, to be left alone to enjoy "LIFE" without  fetters.  He cannot be hounded out by the Police or C.B.I.   merely  to  find out whether he has  committed  any offence  or is living as a law-abiding citizen.  Even  under Article  142 of the Constitution, such a direction cannot be issued.   While  passing an order under Article 142  of  the Constitution,  this  Court  cannot  ignore  the  substantive provision  of  law  much   less  the  constitutional  rights available   to  a  person.   (See   :   Supreme  Court   Bar

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Association  vs.  Union of India & Ors.  (1998) 4 SCC 409  = AIR 1998 SC 1895).

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

     We may say that we maintain the rule of accountability and  liability of the Executive including public servants in administrative  matters  and  confirm that there  should  be transparency  in all what they do, specially where grant  of largesse  is  concerned.   But, the present  case  is  being decided on its own peculiar facts and features in which, the finding as to the commission of tort of misfeasance recorded by  this  Court  or the award of exemplary damages  as  also direction  for  investigation  by   the  C.B.I.,  cannot  be sustained  on account of errors apparent on the face of  the record.

     We  may  also point out that the powers of this  Court under  Article  32 and that of the High Court under  Article 226  are  plenary powers and are not fettered by  any  legal constraints.   If the Court, in exercise of these powers has itself  committed  a  mistake, it has the plenary  power  to correct  its own mistake as pointed out by this Court in  S. Nagaraja  & Ors.  vs.  State of Karnataka & Anr.  1993 Supp. (4) SCC 595, in which it was observed as under :

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

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     The Court also observed:

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

     The Court further observed :

     "Rectification  of  an  order   thus  stems  from  the fundamental  principle  that  justice is above all.   It  is exercised  to  remove  the  error  and  not  for  disturbing finality."

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

     For  the  reasons  stated above, the  application  for Review is allowed.  The direction for payment of Rs.50 lakhs as  exemplary damages as also the direction for a case being registered  by  the  C.B.I.    against  the  petitioner  for Criminal Breach of Trust and investigation by them into that offence  and  the further direction to  investigate  whether petitioner  has  committed any other offence  are  recalled. The  amount  of  Rs.50 lakhs, if paid or  deposited  by  the petitioner  with  the Union of India, shall be  refunded  to him.  All applications for impleadment or intervention filed on behalf of allottees are rejected.