Case: Common Cause, Registered Society Vs. Union of India (UOI) and Ors

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 v. Administrator Union Territory of Delhi, AIR 1981 SC 746 = 1981(1) SCC 608 = 1981(2) SCR 516; Olga Tellis and others v. Bombay Municipal Corporation and others, AIR 1986 SC 180 (paras 33 and 34) = 1985(3) SCC 545 = 1985 Supp.(2) SCR 51; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others, AIR 1991 SC 101 (paras 223, 234 and 259) = (1991) Supp.1 SCC 600 = 1990 Supp.(1) SCR 142). In Kharak Singh v. State of U.P., AIR 1963 SC 1295 = 1964(1) SCR 332, demociliary visit by the Police was held to be violative of Article 21. 160. A man has, therefore, to be left along 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 Association v. Union of India and others, 1998(4) SCC 409 = AIR 1998 SC 1895 ). 161. 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 the 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. 162. 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 largess 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. 163. 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. v. 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 decision 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. The Court also observed : Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherit in it is the universal calm 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. 164. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. We have seriously considered the contention of Mr. Parasara, as set out above, but we are unable to agree with him on the broad proposition placed before us25. 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 to 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.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 subordinate have blundered and have acted contrary to law33. 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 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.38. Essentially, under public law, it is the dispute between the citizen or a group of citizens on the one hand and the State or other public bodies on the other, which is resolved. This is done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. The exercise of constitutional powers by the High Court and the Supreme Court under Articles 226 and 32 has been categorised as power of judicial review. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Article 14 read with other Articles dealing with Fundamental Rights, every executive action of the 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 mandates39. 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.e different between public and private law was again examined by this Court in Nilabati Behera v. State of Orissa (supra). Dr. Anand, J. (as His Lordship then was) in his separate concurring judgment laid down as under :-34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High 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 indefeasible 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 Articles 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary emends 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 law35. 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 Articles 32 and 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, it possible. The decisions of this court in the line of cases starting with Rudul Sah v. State of Bihar granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Articles 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumstances and self-restraint, lest proceedings under Articles 32 or 226 are misused as a disguised substitute for civil action in private law.. This is a classific exposition of the realm of Public Law by (Dr.) Justice Anand (as His Lordship then was), who had 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.proposition cannot be accepted.Thus, were 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 proceedings51. The decisions relied upon by Mr. Parasaran, namely, P. Rathinam v. Union of India, (1989) Supp.2 SCC 716; In Re: Death of Sawinder Singh Grower, 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.60. 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 that 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.submission is also liable to be rejected.. The course of justice, insofar as the tortious liability of the State in concerned, was disturbed by the decision of this Court in Kasturi Lal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039 =1965(1) SCR 375, in which a partner of Kasturilal Rali 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 entirety 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. Vidyavatis 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 Kasturilals case (supra0, 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 ordered. Reference in this connection may be made to the decisions of this Court in State of Gujarat v. Memon Mahomed Haji Hasan, AIR 1967 SC 1885 and Smt. Basava Kom Dyamogouda Patil v. State of Mysore, AIR 1977 SC 1749 and a number of other cases, including those dealt with under Article 32 of the Constitution by this Court in all of which compensation and damages were awarded to the petitioner for tortious liability of the servants of the State. These cases, namely, Rudul Shah v. State of Bihar (supra), Bhim Singh v. State of J&K (supra), Saheli, a Womans Recourses Centre v. Commr. of Police, Delhi (supra); Peoples Union of Democratic Rights v. Police Commissioner, Delhi (supra) and Sebastin H. Hongray v. Union of India, 1984(3) SCC 85 = AIR 1984 SC 1026 , do not refer to the decision of this Court in Kasturilals case (supra). It m ay be mentioned that in Kasturilals 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 persons Fundamental Right to LIfe and Liberty was violated, the Court granted damages and compensation to that person. The liability is based on the provisions of the Constitution and is a new liability which is not hedged in by any limitations including the doctrine of `Sovereign immunity. Reference may also be made to the decision of Privy Council in Maharaj v. Attorney General of Trinidad and Tobago, (No. 2) 1978(2) AII 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 redress under Section 6 of the Constitution of Trinidad and Tobago on the ground that he was deprived of his liberty without due process of law as guaranteed to him under Section 1 of that Constitution. The claim was dismissed by the High Court. But was upheld by the Privy Council in appeal. The Privy Council held that Section 6 of the Constitution impliedly allowed the High Court to award compensation as compensation may be the only practicable form of redress in some cases.76. 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.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 that act does not fall within the purview of act of the State. So also, the administrative bodies or authorities, which deal in administrative matters and take decisions specially for the implementation of the Govt. policies, have to act fairly and objectively and may in some cases also be required to follow the principles of natural justice. It is the basic principle of Administrative 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.. 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 them100. So far as the Minister of Petroleum is concerned, the allotments made by the petitioner were challenged in this Court in Centre for Public Interest Litigation v. Union of India & others, 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 guidelines. 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 Selection Board: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 BoardsCandidates 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 factsDiscretionary 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:(iv) son/daughter0in-law.n the Court directed as under:The above-quoted norms/guidelines etc. shall be followed by the Central Government in making all such discretionary allotment 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.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 allotees have already been rejected. We, therefore, cannot entertain any plea which even indirectly aims at setting aside the judgment under review on that question103. 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 were made in excess of the quota after that judgment104. In a case relating to manufacturers 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 manufacturers five per cent discretionary quota concerning allotment of `Maruti-800 cars. (See: Ashok K. Mittal v. Maruti Udyog Ltd. & another, 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.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 Authoritys case (supra) which did not consider even the basic elements which constitute the tort of misfeasance which we have already discussed above106. 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 cut of malice towards the other as there was none else, to contest or compete with the claim of the person who made the application for allotment. Nor could it be said that the petitioner made the allotment of petrol outlet in favour of the applicant with the knowledge that such allotment was likely to injure the interest of any other person107. 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 applications 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 want on 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 Officer 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 Office108. 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 generaly 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 plaintiff109. 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 end here110. 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.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 hand capped, poor, unemployed, illiterate out 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 auction112. 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 vituperative 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.117. 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 review118. 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, (sic) vindictive damages or retributory damage. These are awarded whenever the defendants conduct (sic) to be sufficiently outrageous to merit punishment for example where the conduct discloses malice cruelty indolence or the like119. 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.121. 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 categories of cases in which and award of exemplary damages conserve 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 defendants 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.124. 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 calamitous. Left unprotected from attack, large numbers of ships and men and vast quantities of material were lost. Broomes action was vindicated; the error was the Admiraltys not his. Many persons wrote about the catastrophe, including Sir Winston Churchill and the wars official historian, but none faulted Broome for it until Cassell & Co. Ltd. published The Destruction of P.JO 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 i.e. authors 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 dont think that any insurance company would underwrite you.The authors then submitted the book for publication to Cassell & Co. Ltd., which praised the book for its very robust view of libel dangers. Cassell though that the amount of profit which he would earn by publishing the book would far exceed the amount of damage which he would be required to pay in an action for libel. As anticipated, action for libel was instituted again Cassell & Company. At the trial, neither the author nor the publisher gave evidence. Every witness who was called support 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 25,000The 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 accepted 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 if 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.d Denning further observed :-All this leads me to the conclusion that, if ever there was a decision of the House of Lords given per incuriam, this was it. The explanation is that the House, as a matter of legal theory, though 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 its, 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. v. 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 v. Barnard (supra) was correctly decided. All the observations of Lord Denning including that Rookes v. Barnard was decided per incuriam were diluted, rather overruled126. 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 though 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 damages29. If we were to apply the rule in Rookes v. Barnard as upheld in Cassell & Co. Ltd. v. Broome (supra) invariably and unhesitatingly and were to award exemplary damages in every case involving Govt. officers or Govt. seryants, the result would be appalling.136. 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 laksh 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.137. 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 fundamental rights of a citizen or had acted arbitrarily, it should be compensated by awarding exemplary damages against that officer or Minister138. 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 petitioner139. Lord Devlin further pointed out that award of exemplary damages should be moderate. Some of the awards that the jury had made in the pat, 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 damages140. 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.142. 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.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 the offence set out in the Penal Code to which we would advert a little later145. 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.matter may be examined from another angle147. 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.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.A trust contemplated by Section 405 would arise only when there is an entrustment of property or domination 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 ownership of the property and arises out of a confidence reposed and accepted by the owner.157. Having regarding 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 case158. 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 persons 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 21.162. 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 largess 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 record163. 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 mistake163. 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 mistakeas pointed out by this Court in S. Nagaraja & Ors. v. 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 decision 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.e Court also observed :Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherit in it is the universal calm 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.e 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.