Indian Kanoon - Search engine for Indian Law

9. Question is whether they were selected in accordance with law, which aspect as its importance because apparently a large number of other persons could as well fall within the categories in question and had applied also? From the report of the CBI it is clear that the alottees had been selected, not by following the tender system, as required by the policy of 1994, but because of their relationship with the Minister or her personal staff, or being employees or friends of such persons. If that be so, the allotments were wholly arbitrary and speak of misuse of power. All important question is what is required to be done to undo the wrong and how the wrong doer is to be dealt with within the parameters known to law.

position was noted.

14. From the aforesaid it is clear that the above has been accepted as a part of the law of tort practically all over the world. What is more, in some countries exemplary damages have been awarded for misuse of public power. Reference may be made to Deshpriya and another v. Municipal Council, Nuwara Eliva & Others. which a decision of the Supreme Court of Sri Lanka dated 10.3.1995, noted at pages 115 to 117 of 1996(1) Commonwealth Human Rights Law Digest (CHRD). Therein, aggravated award was ordered where political discrimination was the motive for restricting freedom of expression. The Supreme court of Bahamas in the case of Tynes v. Barr, by a decision rendered on 28.3.1994, ordered for exemplary damages for arbitrary, oppressive or unconstitutional action by State Officials. A summary of this decision is reported at pages 117 to 120 of the aforesaid Law Digest. The need for awarding exemplary damages was felt by Sauyer, J. because of the arrogant, abusive and outrageous disregard shown by the police for the law. The learned Judge awarded $40,505 as special damages; $ 75,000 for assault, battery and false imprisonment; $ 1,00,000 for malicious prosecution and $ 40,000 for breach of the plaintiff's constitutional rights. Reference may also be made to the decision of supreme Court of Jamaica in Samulls v. Attorney General (noted at pages 120 to 122 of the aforesaid Digest) in which Reckford, J. by his decision dated 11.11.1994 awarded exemplary damages for assault, battery and malicious prosecution. The award was quantified at $ 1,00,000.

15. The world jurisprudence has thus accepted misfeasance in public office as a species of tortious liability and, to prevent misuse, different courts across the sea have been awarding exemplary damages.

16. We are conscious that the aforesaid cases dealt with injury to a third party (following misuse of power) who had sought damages for the loss caused, whereas in the present case there is no injury as such to any third person. Even so, the aforesaid cases have been referred for two purposes. Firstly and primarily to bring home the position in law that misuse of power by a public official is actionable in tort. Secondly, to state that in such cases damages awarded are exemplary. 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 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. Insofar as the aspect of loss is concerned, it deserves to be pointed out that there was loss in present case also; and this was to the State Exchequer resultant upon giving of allotments without calling tender as required by the policy. Needless to say that if tender would have been called, higher revenue would have been earned by the State on giving the allotments. For these reasons, we are of the view that 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 in so far as the tortious liability following misfeasance of public office is concerned.

18. Secondly, Smt. Shiela Kaul, who was prima facie personally responsible for the illegal allotments, has to be asked to show cause as to why damage should not be awarded against her for her alleged misuse of power. So, a notice be issued to her to how cause why she should not asked to pay such sum as damages, for each of the illegal allotments made by her, as this Court would deem just and proper. The cause would be shown within three weeks of the receipt of this order.

19. The issue relating to the matter of illegal allotments of the aforesaid 52 shops/stalls, stands disposed of accordingly. It may be put up for further orders on 1st November, 1996.