SHIVSAGAR TIWARI versus UNION OF INDIA AND ORS.

Citation: [1996] SUPP. 7 S.C.R. 478 · Decided: 11-10-1996 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Disposed off
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Judgment (excerpt)

A 
B 
SHIVSAGAR TIWARI 
v. 
UNION OF INDIA AND ORS. 
OCTOBER 11, 1996 
[KULDIP SINGH AND B.L. HANSARIA, JJ.] 
Misuse of powe~iniste,.-Allotment of shops-Without fallowing the 
guidelines, allotted to own relatives and friends-Held, allotments are ar-
bitrary, misuse of power-Injury to the high principle of public la»--Actionable 
C in tort-No injury to third person-No sequitur insofar as tortious liability 
following misfeasance of public office-Show Cause Notice to the Minister as 
to why exemplary damages should not be awarded against her for her alleged 
misuse of power. 
The present Writ Petition has been filed against the alleged 
D motivated and arbitrary allotments of shops/stalls in the year 1994 by the 
then Minister of Urban Development. It was alleged that the Minister had 
allotted some of the shops without following the guidelines of the Policy of 
1994 to own relatives and friends. The Court directed the CBI to inquire 
into the matter and file a report. 
E 
According to CBI, the orders of allotments in respect of the 
shops/stalls in question, were passed by the said Minister and all the 6 
shops allotted were allotted to her own relatives/employees/domestic ser· 
vants of her family members and family friends. The Minister had made 
ten different categories of persons as a basis for deciding the allotments, 
F 
but even this categorization was not adhered to. No reasons, whatsoever, 
were ever assigned to for non-allotment of these shops/stalls to the other 
organizations/persons, who ha:d also applied for the allotment. 
A case under sections 120-B/420/468/471 of IPC and sections 13(2) 
G read with 13(1) ( d) of the Prevention of Corruption Act, 1988 was registered 
against the said Minister, her Addi. Private Secretary and others and a 
Show-Cause was also issued as to why the allotments should not be 
cancelled. 
Director of Estate filed an affidavit before this Court that from 
H 1994-onwards 52 shops/stalls had been sanctioned by the Minister, out of 
478 
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SHIVSAGAR TIWARI v. U.O.l. 
479. 
which 7 shops were already allotted before the approval of the Policy of A 
1994 and the remaining 45 shops were allotted after the approval of the 
said policy. All the allottees, so allotted, were noticed individually to 
appear and file their representation before this Court. 
According to their representation, they had been given allotments 
either because of their being unemployed youths, freedom-fighters, hand· B 
icapped, members of Schedule Castes/Schedule Tribes, widow or poverty· 
stricken. 
Disposing of the writ, this Court 
HELD: 1. It is clear from the report of the CBI that the allottees had C 
been selected, not by following the tender system, as required by the policy 
of 1994 but because of some relationship with the Minister. If that be so, 
the allotments were wholly arbitrary and speak of misuse of power. Such 
misfeasance in public office is considered as a species of tortious liability 
by the world jurisprudence and to prevent such misuse provision of award· D 
ing exemplary damages has been accepted by them. [483-C, 485-C] 
Writ Petition (C) No. 26 of 1995; Common Cause, a Registered Society 
v. Union of India; Lucknow Development Authority v. M.K Gupta, [1994} 1 
SCC 243 = III (1993) CPJ 7(SC); Ron Carelli v. Duplejis, (1959) 16 DLR 
(2d) 689; Farrington v. Thomson, (1959) VR 280; Henly v. Lyme Corpn., E 
(1858) 5 Bing at 107; Bourgoin SA v. Minister of Agriculture, Fishery and 
Food, (1985) 3 All ER 585; Dunlop v. Woollahar Municipal Council, (1982) 
AC 158; Deshpriya &Anr. v. Municipal Council, Nuwara Eliva & Ors, (1996) 
1 CHRD 115- 117; Tynes v. Barr, (1996) 1 CHRD 117-120 and Samulls v. 
Attorney General, (1996) 1CHRD120-122, relied on. 
2. The State Exchequer has already suffered a loss. If a tender had 
been called, higher revenue would have been earned by the State. So the 
mere fact that 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 
F 
following misfeasance of public office is concerned. [ 485-F-G] 
G 
3.1. To take care of this illegality, all the allotments in question are 
cancelled and the Government is directed to first consider the policy of 
1994 and its categorization, and make requisite alteration, if needed, to 
make the policy just and fair and then make the allotments, according to 
law. If any of the present allottee would not be so selected, he/she be asked H 
480 
SUPREME C
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