SHIVSAGAR TIWARI

VS.

UNION OF INDIA AND ORS

(1996) 6 SCC 558

AUTHOR’S NAME: SIDDHANT KHETAWAT

REGISTRATION NUMBER: 13B135

TABLE OF CONTENTS –

INTRODUCTION

 TORT OF PUBLIC MISFEASANCE..............................................................2

 ARBITRARINESS UNDER ART. 14.............................................................3

FACTS...........................................................................................................................5

ISSUES..........................................................................................................................6

CONTENTIONS

 PETITIONER...................................................................................................6

 RESPONDENT................................................................................................6

JUDGMENT OF COURT............................................................................................6

SUBSEQUENT DEVELOPMENTS...........................................................................10

PRESENT SCENARIO OF LAW...............................................................................11

CONCLUSION............................................................................................................13

BIBLIOGRAPHY.......................................................................................................15
 Page 2

INTRODUCTION:
An arbitrary system indeed must always be a corrupt one.There never was a man who thought
he had no law but own will, who didn’t soon find that he had no end but his own profit.
-Edmund Burke

The present matter at hand touches the provisions of the Constitution of India as well as the
Law of Torts. The concept of ‘arbitrariness’ under Article 14 of the Constitution of India has
been discussed and applied in the case. Moreover, the tort of public misfeasance or
misfeasance in public office has been discussed in great length in the judgment. Thus, in the
present case, mainly two concepts are discussed:
(1) The tort of Public Misfeasance.
(2) “Arbitrariness” of a decision under Article 14 of the Constitution of India.

(1) TORT OF PUBLIC MISFEASANCE –

Being a common law country, India has adopted many of its laws and principles from English
Law. In England, before 1947, the maxim “King can do no wrong” was usually invoked to
make the king absolutely immune from tortuous liability. However, this principle that the
King is not answerable in torts has no place in Indian jurisprudence because in India, the
sovereign powers rest among the people who in turn elect their representatives to run the
govt. and act in accordance to the Constitution of India.

It is the cardinal principle to be observed by the administration (executive or administrative

actions of State or its instrumentality or statutory public body) while exercising its statutory
powers that it must exercise them with reasonable care and it must not act negligently or
maliciously. If the administration acts negligently or maliciously, then it may be liable. 1
Thus, if the action of the authority is deliberately wrongful or malicious without any legal
justification, then there is no doubt that it will be liable in damages. 2 This is known as the tort
of ‘misfeasance in public office’ and it includes malicious abuse of power, deliberate
maladministration and other unlawful acts causing injury.3 The tort of misfeasance in public
office is well established in England and India.4 In a claim based on the tort of misfeasance,

1
Mahabir Prashad Jain & Srimandir Nath Jain, M.P. Jain & S.N. Jain: Principles of Administrative Law (3rd ed.
2002)
2
Gould, Damages as remedy in Administrative law, (1972) 5 NZULR 105.
3
William Wade, Administrative Law (4th ed. Oxford Univ. Press 2004).
4
Justice G.P. Singh, Law of Torts, 25th Edn., , pp. 345 to 349
 Page 3

a plaintiff must prove: (a) An abuse of powers given to a public officer; (b) That the abuse
was constituted by a deliberate act or deliberate omission by the public officer with the
knowledge that the act or omission was wrongful or with recklessness as to whether or not
the act or omission was wrongful; (c) That the public officer acted in bad faith; (d) That the
public officer knew that his act or omission would probably injure the plaintiff or was
reckless as to the risk of injury to the plaintiff; (e) The plaintiff must also prove that the act or
omission caused him loss.5

The tort of misfeasance in public office has been accepted by the Supreme Court and it has
been held that when an officer of the govt. or a public authority acts maliciously or
oppressively causing harassment and agony to the plaintiff, the officer is personally liable for
payment of compensation.6 It has been reiterated that a govt. officer may be held liable in
tort; if in the discharge of his official administrative duties, he acts maliciously or with
oblique motive or mala fide.7 The same is the matter in the present case.

(2) ARBITRARINESS UNDER ARTICLE 14 –

Art. 14 guarantees to every person “equality before law” and “equal protection of laws”. It is
the latter category which includes in its ambit the doctrine of non-arbitrariness which is
derived from the Rule of Law. Traditionally, Rule of Law denotes absence of arbitrary
powers and therefore, one can denounce the increase of arbitrary or discretionary powers of
the Administration and advocate controlling it through procedures and other means.8 Even in
India, Rule of Law has been accepted as one of the most important doctrines which must be
complied with. It has been held by the SC that “Rule of Law is the antithesis of
arbitrariness... Rule of Law is now the accepted norm of all civilized societies.9 The concept
of Rule of Law is also invoked to state that the administration may not exercise arbitrary
power and that it includes judicial review of arbitrary executive action”. 10 It has also been
held that any abuse of power by a public officer should be subject to control of courts. 11

Under Art. 14, courts can control administrative discretion at two levels, viz., (1) at the stage

5
Three Rivers District Councils v. Bank of England, (No. 3), (2001) 2 All ER 513, p.550 (Lord Hutin) (HL)
6
Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787
7
S.P. Goel v. Collector of Stamps, Delhi, 1996 SCC (1) 573
8
supra n. 1
9
ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207
10
State of MP v. Thakur Bharat Singh AIR 1967 SC 1170
11
State of Punjab v. Khanchand, AIR 1974 SC 543
 Page 4

of conferment of discretion (2) at the stage of application of law and use of its discretion by
the administration in a specific factual situation, by examining the administrative action with
a view to seeking whether it conforms with the legislative policy enunciated in the relevant
statute.12 In the present case, we are concerned with the latter category. If complete freedom
of action is given to the administration in this regard, it would lead to exercise of powers in
an arbitrary manner threatening individual liberty.13 So, it is the duty of the judiciary to keep
a check over such exercise of the powers by the executive and strike them down if it leads to
encroachment of rights of citizens.

However, it must be noted that while defining parameters of scope of judicial review is
limited to deficiency of decision-making process and not the decision.14 While appreciating
the inherent limitations in exercise of the power of judicial review, the judicial quest has been
to find and maintain a right and delicate balance between the administrative discretion and
the need to remedy alleged unfairness in the exercise of such discretion.15 Thus, some of the
ways through which discretionary power can be controlled are the application of procedural
safeguard of natural justice, doctrine of excessive delegation with regards to delegated
legislation, abuse of discretion, non-application of mind etc.

In the present case, we are concerned with the abuse of discretion. Under this heading, one of
the grounds which are related to the present matter is the ground of mala fides. Mala fides
translate to bad faith in English and it simply means dishonest intention or corrupt motive. It
includes those cases where the motive force behind an administrative action is personal
animosity, spite, vengeance, personal benefit to the authority itself or its relations or friends.
Thus, mala fide exercise of discretionary power is bad as it amounts to abuse of power. 16 The
same has been held in many SC decisions such as Partap Singh v. State of Punjab 17, Rowjee
v. State of AP18 etc. Thus, administrative orders may be quashed on the grounds of mala fide.
Other grounds can also be said to be applied in this case such as the consideration of
irrelevant facts, etc.

12
supra n.1
13
ibid.
14
Rameshwar Prasad (VI) v. UoI, (2006) 2 SCC 1
15
Jayrajbhai Janatibhai Patel v. Anilbhai Nathubhai Patel, 2006 (8) SCC 200
16
Supra n. 1
17
AIR 1952 SC 72
18
AIR 1964 SC 962
 Page 5

FACTS:
The present matter was a result of a PIL filed by SC lawyer Shiv Sagar Tiwari with regard to
the Housing Scam of 1996.19 In the proceedings, the Court had asked the CBI to inquire into
the matter by an order. The CBI subsequently inquired into the matter and submitted 4
Interim Reports to the Court. The following came to be known from the investigation –

From the year 1994 onwards, 54 shops/stalls were sanctioned by the then Minister of Urban
Development (Smt. Shiela Kaul) and the same had be allotted to certain people in accordance
with a policy approved by her in 1994. However, it was brought to the notice of the Court by
an affidavit that out of the 52 shops, 7 were allotted by Smt. Kaul before the approval of the
policy of 1994 and only 45 shops were allotted after the policy of 1994. The orders of
allotment of the 7 shops were passed by Smt. Kaul herself and all of these shops were allotted
by her to her own relations/employees/domestic servants of her family members and friends.
2 shops were allotted to her grandsons, 1 shop to the maidservant of her son etc.

It was found that while she had made ten different categories to allot the stalls, she did not
adhere to the categorisation while making the allotments. Also, while making allotment of the
stalls, most of the stalls were allotted to the relations/friends of her personal staff and officials
of Dte. of Estates. It was also found that persons who were the relations of her personal staff
were allotted some of the stalls. Further, Moreover, it was found that many
people/organisations had applied for the allotments from time to time but none of them were
considered by her and no reasons were recorded for the rejection of such applications.

The Court by an order noted that cases under Sec. 120B, 420, 468, 471 of IPC and Section
13(2) read with 13(1)(d) of the Prevention of Corruption Act had been registered against Smt.
Kaul, her additional private secretary and others. Further, the order also included an issuance
of a show cause notice why allotment of the shops should not be cancelled. The Estate
Officer was asked to submit a report after considering the replies. The report was filed by the
Director of Estates in the form of an affidavit which also contained gist of the objections filed
by the various allottees. The Court further granted an opportunity of hearing to all the
allottees. The substance of the contention of all the allottees was that they had been given an
allotment due to their special status as SC/STs, unemployed youths, handicap etc.

19
http://www.thehindu.com/2005/02/09/stories/2005020910800300.htm, last accessed on 29th Aug, 2015
 Page 6

ISSUE BEFORE COURT:

The question that the Court considered was – Whether allottees were selected in accordance
with law, which aspect has its impotence because apparently a large number of other persons
could as well fall within the categories in question and had applied also?

Thus, two broad issues can be said to have been discussed in the present case –
(i) Whether the act of allotment of shops/stalls was illegal and arbitrary in nature?
(ii) Whether the Minister was liable to pay damages under tortious liability for the tort
of misfeasance in public office?

CONTENTIONS:

PETITIONER –

It was the submission of the petitioners that the allotments made by the Minister was illegal
and arbitrary thereby violating Art. 14 of the Constitution of India.

With regard to the tort of misfeasance in public office, it was contended the Minister should
be held liable to pay exemplary damages for the public injury caused as a result of arbitrary
exercise of powers. This abuse of power had resulted in a great loss to the exchequer.

DEFENDANT –

It was contended that the acts committed by Smt. Kaul did not amount to misfeasance in
public office as she was merely following the procedures that had been laid down. Further, it
was contended that the essentials of the tort of public misfeasance was not fulfilled as the
plaintiffs could not prove that the act or omission caused loss to them. It was also submitted
that she had no intention to harm anyone and hence the tort of public misfeasance could not
be invoked.

JUDGMENT OF COURT:
1. ART. 14 –
With regard to the allotments, the court held that it was made without following the tender
system as required by the policy of 1994. On the contrary, these allotments were made to the
allottees by virtue of their relationship with the Minister or her personal staff. Due to this, the
criteria of selection of allottees was wholly arbitrary and was an indication of misuse of
 Page 7

power. The Court referred to the case of Common Cause, a Registered Society v. Union of
India in this regard wherein the Court reiterted the need to act fairly and justly in the matter
of grant of largesses, pointing out that any arbitrary distribution of national wealth would
violate the law of the land.20

Since the allotments were illegal, the Court cancelled the allotments to take care of the
illegality. It further directed the government to review the policy of 1994 and see whether the
categorisation made by it was just and fair. If it was not so, it allowed the government to
make suitable alterations to it. After the framing of the new policy, the government should
allot the shops/stalls as per the new policy and in case the present allottees did not fit the new
criteria, they should be asked to vacate the stalls by giving three months time. It also allowed
the present allottees to continue holding the stalls until the government formulated the policy
and completed the exercise of allotment.

2. PUBLIC MISFEASNCE –
With regard to the issue of public misfeasance, the Court firstly discussed the philosophy,
sociology and etymology of corruption wherein it was stated that corruption is an abuse of
public resources for private gain.21 Further, the role assigned to a minister in a parliamentary
democracy was discussed and how he was responsible, accountable and answerable to the
people for the acts, policies, of his department.

The Court then moved to determine whether the tort of public misfeasance could be
established. For the same, the Court went on to undertake a detailed study of the world
jurisprudence of the tort of misfeasance in public office as a species of tortious liability. This
was done by referring to some authoritative books on Administrative law.

The Court referred to Wade’s Administrative law which shows that a breach of statutory duty
does give rise in public law to liability, which has come to be known as "misfeasance in
public office", and which includes malicious abuse of power.22 The Court further referred to a
case of the Canada SC, Ron Carelli v. Duplejis23 to hold that public officers who engaged in
malicious or deliberate wrong-doing may be liable for damages. In the said case, damages

20
AIR 1996 SC 3538
21
Seymour Martin Lipset, Encyclopaedia of Democracy, Vol. 1
22
supra n. 2
23
(1959) 16 DLR (2d) 689
 Page 8

were awarded against the Prime Minister of Quebec for cancellation of a liquor licence when
he did not have such power. The Supreme Court further referred to two decisions of the SC of
Victoria, Australia viz., Farrington v. Thomson24 and Henly v. Lyme Corporation to quote the
following principle –

“Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act
of omission or commission, and the consequence of that is an injury to an individual, an
action may be maintained against such public officer. The instance of this are so numerous
that it would be a waste of time to refer to them.”25
Thus, the final opinion of Wade in this regard was that the tort of misfeasance in public office
imposes a liability on the public officer who does an act with the knowledge that such an act
may amount to abuse of a public office.

The Court agreed with this opinion of Wade and also discussed the case of Lucknow
Development Authority v. N.K. Gupta wherein it was held that "misfeasance in public office"
was a part of the law of the tort and that public servants become liable in damages for
malicious, deliberate or injurious wrong-doing.26

Further, the Court referred to the English cases of Bourgoin SA v. Minister of Agriculture,
Fishery and Food27 and Dunlop v. Woollahar Municipal Council28. In the former case,
damages were held to be permissible against a Minister by the Court. The latter case noted
that such a position was ‘well established’.
Thus, the Court concluded that misfeasance in public office had been accepted as a part of the
law of torts all over the world.

The Court then went on to establish the principle that exemplary damages could be awarded
in case of misuse of public office. The Court examined the laws in many countries in this
regard and arrived at such a conclusion. The SC referred to a case decided in the SC of Sri
Lanka,29 wherein exemplary damages were awarded for restricting freedom of speech for the

24
1959 VR 280
25
(1858) 5 Bing 91
26
AIR 1994 SC 787
27
(1985) All ER 585
28
(1982) AC 158
29
Deshpriya and Anr. v. Municipal Council, Nuwara Eliya and Ors, 1996 (1) CHRD, pp. 115 to 117
 Page 9

motive of political discrimination. The SC further referred to a case of SC of Bahamas,30

wherein exemplary damages were awarded due to the arbitrary, unconstitutional, arrogant
and outrageous disregard shown by police officials for the law. Furthermore, the SC referred
to a case of the SC of Jamaica,31 in which exemplary damages to the tune of $1,00,000 was
awarded for malicious prosecution, assault and battery.

Thus, the Court concluded that the tort of misfeasance in public office had been accepted in
the world of jurisprudence as “a species of tortious liability” and to prevent misuse of the
same, exemplary damages have been awarded in most of the parts of the world.

However, the Court sought to differentiate the present case from the cases referred on the
ground that the referred cases addressed injuries caused to third parties due to the misuse of
power by the officials following which a claim for damages was made by them. In the present
matter, the nature of the case was different as there was no such injury to a third party due to
misuse of power by the public official. Nonetheless, the Court held that a mere absence of
injury to third party won’t make the above stated principles non-applicable insofar as there an
injury to “high principle in public law that a public functionary has to use its power for bona
fide purpose only and in a transparent manner.”32 As regards the aspect of loss, the Court held
that there was loss to the State exchequer because higher revenue would have been generated
if the allotments had been made by calling tenders as was required by the policy of 1994.

Thus, the Court evolved the principle that tort of misfeasance in public office had no
connection with the fact whether an injury was caused to a third party and whether he had
come forward to claim them.

In light of the contentions, the Court held Smt. Kaul prima facie responsible for the illegal
allotment of the stalls and asked her to show cause as to why damage should not be awarded
against her for her alleged misuse of power. A notice was issued against her to show cause
why she should not asked to pay such sum as damages, for each of the illegal allotments
made by her, as the Court would deem just and proper.33

30
Tynes v. Barr, CHRD, pp. 117 to 120
31
Samulls v. Attorney General, CHRD, pp. 120 to 122
32
(1996) 6 SCC 558
33
ibid.
 Page 10

The Court’s succinct ratio in the present case may be stated as –

“The fact that there is no injury to a third person in the present case is not enough to make
the aforesaid principles non-applicable inasmuch as there was injury to the high principle in
public law that a public functionary has to use its power for bonafide purpose only and in a
transparent manner.”34

SUBSEQUENT DEVELOPMENT:
A charge sheet based on the case accused the Smt. Kaul of entering into a conspiracy with her
two personal staff members and over forty other individuals for allegedly renting out
government shops for a consideration.35Without holding a trial or providing Kaul with an
opportunity to defend herself,36 the Supreme Court of India in 1996 imposed an exemplary
fine of ₹ 6 million on Kaul for having nepotistically rented out 52 shops and kiosks under the
discretionary quota.37 Kaul was also fined Rs.60 lakh by the Supreme Court in 1996 but it
was waived after she filed a review petition.38

The case has moved at snail’s pace. The FIR under Sec. 120B of IPC and for other offences
under the Prevention of Corruption Act was registered in 1996 and it was only seven years
later in April 2003 that the CBI charge sheeted Kaul and her staffs. Kaul has resisted the
framing of charges of various pretexts.39 The Special Judge for CBI cases took cognizance of
the charge sheet in April 2003 and summoned the minister and her aides. 40 However, nothing
happened as the case dragged on for years. In Feb. 2012, a Delhi court decided to frame
charges against Smt. Kaul and her aides and held "Prima facie case is held to be made out
against all the three accused. Put up for framing of formal charge on February 17, 2012," the
court said.41 Mrs Kaul, however, failed to appear before the court to complete the legal

34
1996 (7) SCALE 643
35
http://www.hinduonnet.com/2003/04/23/stories/2003042308070100.htm last accessed on 29th Aug, 2015
36
http://en.wikipedia.org/wiki/Sheila_Kaul, last accessed on 29th Aug, 2015
37
http://indiatoday.intoday.in/story/supreme-court-appears-to-have-struck-yet-another-blow-for-executive-
accountability/1/282682.html, last accessed on 29th Aug, 2015
38
http://indiatoday.intoday.in/story/cbi-inquiry-old-ghosts-return-to-haunt-sheila-kaul-pk-thungon-and-rashid-
masood/1/218596.html, last accessed on 29th Aug, 2015
39
http://www.ndtv.com/india-news/98-yr-old-sheila-kaul-former-minister-ordered-to-appear-in-court-481714,
last accessed on 29th Aug, 2015
40
http://www.thehindu.com/2005/02/09/stories/2005020910800300.htm, last accessed on 29th Aug, 2015
41
http://www.outlookindia.com/news/article/Court-to-Frame-Formal-Charges-Against-Sheila-Kaul/750255, last
accessed on 29th Aug, 2015
 Page 11

formality of either pleading not guilty and claiming trial or admitting the guilt. She failed to
appear before the court on the plea that she is suffering from various ailments and is totally
bed-ridden.42

The court had on April 9, 2012 asked AIIMS director to constitute a medical board to
examine Mrs Kaul. She appeared before the medical board on April 23 and was kept under
observation till April 26, during which she was examined by six doctors. The medical board
chairman, Dr S K Khandelwal in his statement to the court said Kaul was "neither of unsound
mind nor was she lunatic. She is not suffering from any mental retardation. She could
understand simple questions put to her and at times questions had to be repeated to make her
understand. Her comprehension was slow and delayed."43 On 8th October,2013 a Supreme
Court bench set aside the Delhi HC order dismissing her plea challenging framing of
charges.44 The Court had ordered Kaul to appear before the Court and answer the charges
pressed against her after AIIMS had cleared her for appearing in Court.

It is clear that the case has been delayed on various grounds. Now, the SC has upheld the plea
of Smt. Kaul regarding the failure of the high court to determine whether the trial court
ignored her medical condition and her claim of insanity and old age. The Court mused that
the trial of other accused persons was being delayed on account of the pendency of the
proceedings, and wanted the matter to be expedited. But given the fact that nearly 17 years
have elapsed without even the framing the charges, it seems fairly certain that the lady shall
never face be successfully prosecuted, and that the charges will lapse on her demise.45

PRESENT SCENARIO:
The present case and the case of Common Cause v. Union of India46 had sought to establish
the principles regarding the tort of misfeasance of public office in India. However, this views
were somewhat altered by the SC in the case of Common Cause, A Registered Society v.
Union of India & Ors47. Further, the SC in a review petition of the Shivsagar Tiwari case
filed by Mrs. Kaul, quashed the damages on compassionate ground having regard to the
42
http://www.ndtv.com/india-news/98-yr-old-sheila-kaul-former-minister-ordered-to-appear-in-court-481714,
last accessed on 29th Aug, 2015
43
ibid.
44
http://www.niticentral.com/2013/10/23/congress-protects-convicted-cronies-149631.html, last accessed on
29th Aug, 2015
45
ibid.
46
AIR 1996 SC 3538
47
AIR 1999 SC 2979
 Page 12

peculiar facts and circumstances of Mrs. Kaul, who was stated to be old, ailing and passing
through great hardship.48

In the first two cases, the Court had sought to evolve the principle that even if no third party
was injured and no one approached the court for claiming damages, the tort of misfeasance in
public office could be said to have been committed. The Courts held –
“The mere fact that in the present case there is no injury to a third person and he has not
come forward to claim damages has no sequitur insofar as the tortious liability following
misfeasance of public office is concerned.”49
However, the three judge bench in the latter case of Common Cause, A Registered Society v
UoI (1999) went on to define the tort of misfeasance in public office and also looked at its
ingredients. The Court held the following –

“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.”50

Thus, it was held by the Court that though the actions of the Minister was arbitrary in the
present case, the tort of misfeasance in public office could not be established as the
ingredients of the offence had not been committed. The Court held –

“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.”51

48
Nayeem Firoz, A Book on Criminal Breach of Trust, Cheating and Cheque Dishonor Litigation, (2nd edn.
2013)
49
1997 (1) PLJR 5
50
(1999) 6 SCC 667
51
ibid.
 Page 13

Thus, the position regarding the injury to third party in a case tort of misfeasance in public
office can be said to have been changed from the case of Shivsagar Tiwari v. UoI to the
Common Cause, A Registered Society v UoI (1999).

CONCLUSION:
The present case along with the case of Common Cause, A Registered Society v UoI (1996)
went on to establish the system of ‘discretionary quotas’ has become a breeding ground for
corruption and favouritism. Such systems should be abolished and an attempt to establish a
transparent mechanism should be made so that some benefits can be made to the people in
hardship with the help of policies and guidelines. We should prohibit ourselves from creating
such a situation where only a select few are able to get the benefits due to the some illegal
acts while a host of deserving people are put aside and denied their due. The SC itself in the
present case strongly discouraged the implicit classification created by corruption between
those who could pay bribes and those who cannot afford to pay.

Further, with regard to the tort of misfeasance in public office, the principle evolved by the
Court that an injury to a third party is not required for a tort of misfeasance in public office
seems to have been over ruled by the case of Common Cause, A Registered Society v UoI
(1999).

The author believes that the opinion of the Court in the present matter is correct. It was
thought the decisions of the SC in the present matter and the Common Cause Case (1996)
would serve as an eye opener to the officials occupying higher positions in the government
and make them exercise their powers in accordance with the law. It was believed that it
would further strengthen the jurisprudence of public accountability and transparency in the
working of the government.

However, to the dismay of the common people, the principles laid down were over-ruled in
the Common Cause case wherein it was callously held by the SC that though the actions of
the minister was high handed in nature and wholly arbitrary, it failed to fulfil the ingredient
of the tort of misfeasance in public office due to which the exemplary damages imposed upon
the minister was dropped. The further reasoning of the Court that “Directing the Minister to
pay, a sum of 50 lakh to the Government, would amount to asking the government to pay
 Page 14

exemplary damages to itself, which is not tenable under law”52 is erroneous and flawed. The
SC has by this judgment acted in derogation of the maxim ‘Ubi jus ibi remedium’. While the
Court accepted that the actions of the minister was illegal, it failed to provide a remedy
against the same. This approach is not particularly healthy for a democratic country like India
where the basis of the working of the government is based on public accountability for one’s
actions. The SC by rendering this judgment has unwittingly re-adopted the colonial approach
that “A King can do no wrong” which is a regressive and harmful approach and must be
quickly done away with.

Thus, in the author’s opinion, the approach of the Court in the present case is correct and may
be considered the SC in the present case.

52
ibid.
 Page 15

BIBLIOGRAPHY –

BOOKS –

1. Mahabir Prashad Jain & Srimandir Nath Jain, M.P. Jain & S.N. Jain: Principles of
Administrative Law (3rd ed. 2002)
2. William Wade, Administrative Law (4th ed. Oxford Univ. Press 2004).
3. Justice G.P. Singh, Law of Torts, (25th Edn)
4. Seymour Martin Lipset, Encyclopaedia of Democracy, Vol. 1, (10th Edn.)
5. Nayeem Firoz, A Book on Criminal Breach of Trust, Cheating and Cheque Dishonor
Litigation, (2nd edn. 2013)

CASES –

1. ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207

2. Bourgoin SA v. Minister of Agriculture, Fishery and Food, (1985) All ER 585
3. Common Cause, A Registered Society v. Union of India & Ors, AIR 1999 SC 2979
4. Common Cause, a Registered Society v. Union of India, AIR 1996 SC 3538
5. Deshpriya and Anr. v. Municipal Council, Nuwara Eliya and Ors, 1996 (1) CHRD,
pp. 115 to 117
6. Dunlop v. Woollahar Municipal Council, (1982) AC 158
7. Farrington v. Thomson, 1959 VR 280
8. Henly v. Lyme Corporation, (1858) 5 Bing 91
9. Jayrajbhai Janatibhai Patel v. Anilbhai Nathubhai Patel, 2006 (8) SCC 200
10. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787
11. Partap Singh v. State of Punjab, AIR 1952 SC 72
12. Rameshwar Prasad (VI) v. UoI, (2006) 2 SCC 1
13. Ron Carelli v. Duplejis, (1959) 16 DLR (2d) 689
14. Rowjee v. State of AP, AIR 1964 SC 962
15. S.P. Goel v. Collector of Stamps, Delhi, 1996 SCC (1) 573
16. Samulls v. Attorney General, CHRD, pp. 120 to 122
17. State of MP v. Thakur Bharat Singh AIR 1967 SC 1170
18. State of Punjab v. Khanchand, AIR 1974 SC 543
19. Three Rivers District Councils v. Bank of England, (No. 3), (2001) 2 All ER 513
20. Tynes v. Barr, CHRD, pp. 117 to 120
 Page 16

JOURNALS –

1. Gould, Damages as remedy in Administrative law, (1972) 5 NZULR 105.

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