COMMON
MAN AND HON’BLE SUPREME COURT
IMP
EXTRACTS FROM:
JUDGEMENT OF HON’BLE SUPREME COURT OF INDIA
IN
LUCKNOW
DATE
OF JUDGMENT: 05/11/1993
CITATION:
1994 AIR 787 1994 SCC (1) 243 JT 1993
(6) 307 1993 SCALE (4)370
1]
…………Still more important issue is the
liability of payment. That is, should the society or the tax payer be burdened
for oppressive and capricious act of the public officers or it be paid by those
responsible for it. The administrative law of accountability of public
authorities for their arbitrary and even ultra vires actions has taken
many strides. It is now accepted both
by this Court and English Courts that the
State is liable
to compensate for loss or injury suffered by a citizen due to arbitrary
actions of its employees. In State
of Gujarat v. Memon Mahomed Haji
Hasam the order of
the High Court directing payment
of compensation for disposal
of seized vehicles without
waiting for the outcome of
decision in appeal was upheld
both on principle of
bailee's 'legal obligation to preserve the property intact and
also the obligation to take
reasonable care of it ... to return it in the same condition in 5 (1976) 2 SCC 917 6 (1990) 4 SCC 21 : 1990
SCC (Cri) 522: AIR 1990 SC 1849
2]
…. ‘it is immaterial that the respondents had acted bonafide and in the
interest of preservation of public health.
Their motive may be good but their orders are illegal. They would accordingly be liable for any loss
caused to the appellants by their action.' The theoretical concept that
King can do no wrong has been abandoned in England
3].
Under our Constitution sovereignty vests in the
people. Every limb of the constitutional machinery is obliged
to be people oriented. No functionary in exercise of
statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of
constitutional or statutory provisions oppressively are accountable for their behaviour before
authorities created under the
statute like the commission or the courts entrusted with responsibility of maintaining the rule
of law.
4]…..
For such acts
or omissions the loss
suffered has to be made good by the
authority itself. But when the sufferance is due to malafide or oppressive or capricious acts etc.
of a
public servant, then the
nature of liability
changes. The omission
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).
5].
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." (p. 777)
6]
….. The jurisdiction and power of the courts to indemnify
a citizen for injury suffered due to abuse of power by public authorities is founded
as observed by Lord Hailsham
in Cassell & Co. Ltd. v.
Broome13 on the principle that, an award
of exemplary damages can serve a
useful purpose in vindicating the
strength of law'. An ordinary citizen
or a common man is hardly equipped to match the might
of the State or its
instrumentalities. That is provided by the
rule of law. It acts as a check on
arbitrary and capricious exercise of power.
In Rookes v. Barnard14 it was observed
by Lord Devlin, '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'. A public functionary if he acts maliciously
or oppressively and the exercise of power results in harassment and agony then
it is not an exercise of power but its abuse.
No law provides protection against it. He who is responsible for it must
suffer it.
7]…..
. Harassment of a common man by public
authorities is socially
abhorring and legally
impermissible.It may harm him personally but the injury to society is far more
grievous. Crime and corruption thrive and prosper in the society due to lack of
public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary
citizen instead of complaining and
fighting succumbs to the
pressure of undesirable
functioning in offices instead of
standing against it. Therefore the award of
compensation for harassment by
public authorities not only compensates the individual, satisfies him
personally but helps in curing social evil. It may result in improving the work culture
and help in changing the outlook.
8]…..
or semi-govemment offices by holding the officers personally responsible for
their capricious or even ultra vires
action resulting in injury or loss to a citizen by awarding damages against
them.
9]…..
In Smith v. East Elloe Rural District
Council17 the House of Lords held that an action for damages
might proceed against the clerk of a local authority personally on
the ground that he had procured the
compulsory purchase of the plaintiff's property wrongfully and in bad faith.
10].
In Farrington v. Thomson18 the Supreme Court of
Victoria awarded damages for exercising a power the authorities knew
they did not possess.A licensing
inspector and a police officer ordered the plaintiff to close his hotel and cease supplying liquor.
He obeyed and filed a
suit for the resultant loss. The Court observed:
"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."
11]……
Today the issue
thus is
not only of
award of compensation but who should bear the brunt. ….. The authority
empowered to function under a
statute while exercising power
discharges public duty. It has to act to subserve general welfare
and common good. In discharging this duty honestly and
bonafide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. But where the duty is performed capriciously
or the exercise of power results in harassment and agony then the
responsibility to pay the loss determined should be whose? In a modern
society no authority can arrogate to itself the power to act in a manner which
is arbitrary. It is unfortunate
that matters which require immediate attention linger on and the
man in the street
is made to run from one end to
other with no result.
The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has
neither the political backing nor the financial strength to match
the inaction in public oriented departments gets frustrated and it
erodes the credibility in the system.
Public
administration, no doubt involves a vast amount of administrative discretion
which shields the action of
administrative authority. But where it is found that exercise of discretion was malafide
and the complainant is entitled to compensation for mental and physical
harassment then the officer can no more claim to be under
protective cover. When a citizen seeks to recover compensation from
a public authority in respect of injuries suffered by him for capricious exercise of power ………..
12]…….When
the court directs payment of damages or compensation against the State the
ultimate sufferer is the common man. It is
the tax payers' money which is
paid for inaction of those who are entrusted under the Act to discharge
their duties in accordance
with law. It is, therefore,
necessary that the
Commission when it is
satisfied that a
complainant is entitled to compensation for harassment or mental
agony or oppression, which
finding of course should be
recorded carefully on material
and convincing circumstances and not
lightly, then it should
further direct the
department concerned to pay the amount to the complainant
from the public fund immediately
but to recover the same from those
who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.
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[Emphasis added]
Note: Whenever you are harassed by public servants, please
quote these extracts in your communication or attach it to your complaints. I
have experienced positive effect of it in majority of cases, because now govt
officers understand only legal language.
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