Common Cause, A Registered Society Vs. Union of India & Ors [1999] INSC 240 (3 August 1999)
S.Saghir Ahmad, K.Venkataswan, S.R.Babu S.SAGHIR AHMAD, J.
This is a Review Petition in Writ Petition No. 26 of 1995 which was filed by Mr. H.D. Shourie for the following reliefs:- "(i) Pass an appropriate writ, order or orders directing the Respondents 1 to 3 to specifically declare as to when the Union of India will now bring before the Parliament an appropriately drafted Bill for enactment of legislation for the establishment of the institution of Lokpal, or a suitable alternative system of the nature of Ombudsman which is operating in a number of other countries, for checking and controlling corruption in public offices, inter alia, at the political and bureaucratic levels, and whether in the enactment of such legislation they will take into consideration the suggestions that have emanated from the Colloquium recently organised under the auspices of Indian Institute of Public Administration with the participation of foreign and Indian experts for examining various aspects of the matter relating to establishment of Ombudsman institution in this country;
(ii) Pass an appropriate writ, order or orders directing that the institutions and organisations of the Comptroller and Auditor General of India, Chief Vigilance Commissioner, and the Central Bureau of Investigation should indicate to the Hon'ble Court the specific steps which they will take for effectively overcoming any inadequacies and weaknesses in the operations of these important institutions which presently hamper effective and efficacious check on prevalence of corrupt practices in the country and to curb corruption at all political and bureaucratic levels;
(iii) Pass an appropriate writ, order or orders appointing a Commission or Commissioner to urgently undertake comprehensive study of the present inadequacies in the Prevention of Corruption Act 1947 for making specific recommendations to strengthen this enactment for achieving the objective of curbing and checking corruption at the political and bureaucratic levels in the country.
(iv) Pass an appropriate writ, order or orders directing the State Governments Respondents to indicate to the Hon'ble Court as to when they propose implementing the specific suggestions which have been made for strengthening and improvement of the functioning of the system of Lokayukta, including inter alia, the following :
a) To ensure expeditious establishment of the institution of Lokayukta and Upa-Lokayukta in every State;
b) To achieve uniformity in the provisions of various Lokayukta and Upa-Lokayukta Acts; and c) To confer Constitutional status on the institution of Lokayukta." The petition was taken up by this Court on 10.2.95 when the following Order was passed:- "After hearing Mr. Shourie, appearing in-person, we give him liberty to amend the petition by making broad base on the subject of curbing corruption in the country. To come up on 24.2.95." On 10.5.95, the following Order was passed:- "We request the Supreme Court Legal Aid Society to depute a counsel to assist us in this case alongwith Mr.
Shourie, Adv. The Legal Aid Society shall also serve the unserved respondents by depositing the necessary process fee and other expenses. To be listed on 11th August, 1995. All affidavits and counter affidavits may be tendered in the Registry." On 11.8.95, the Court passed the following Order:- "Mr. Shourie, the petitioner appearing in-person, states that it is of utmost importance to have a Lok Pal to curb corruption in the country. Mr. Gupta, learned Solicitor General states that efforts have been made more than once to have consensus regarding the terms and conditions of the proposed bill. According to him efforts are still being made. It is a matter which concerns the parliament and the Court cannot do anything substantial in this matter. Short of that, learned Solicitor General states that he would apply his mind to the various aspects raised in this petition and make some useful suggestions.
Mr. Muralidhar, appearing as amicus curiae to assist us, also states that he would examine the various reports submitted by Comptroller and Auditor General from time to time and in consultation with the Solicitor General and Mr.
Shourie make some suggestions for the consideration of this Court.
Mr. Shourie has invited our attention to a news item in the front page of Indian Express of Friday August 11, 1995 under the caption "In Satish Sharma's reign, petrol and patronage flow together". It is not possible for us to take any action on the press report. On our suggestion the Solicitor General takes notice of this news item and states that he would have the matter examined in the Ministry concerned and shall file an affidavit of the Secretary concerned in the Ministry reacting to this news item. He may file the affidavit within the period of eight weeks.
The Writ Petition is adjourned to 13.10.95." The petition, thus, was diverted towards Captain Satish Sharma who was, at that time, Minister of State for Petroleum and Natural Gas in the Central Government. By Judgment dated September 25, 1996, [(1996) 6 SCC 530] all the 15 petrol outlets, allotted by the Minister to various persons out of his discretionary quota, were cancelled and the following directions were issued to Captain Satish Sharma (petitioner) :- "Capt. Satish Sharma shall show-cause within two weeks why a direction be not issued to the appropriate police authority to register a case and initiate prosecution against him for criminal breach of trust or any other offence under law. He shall further show-cause within the said period why he should not, in addition, be made liable to pay damages for his mala fide action in allotting petrol pumps to the above mentioned fifteen persons." The petitioner submitted the reply to the show-cause notice which was disposed of by Judgment dated November 4, 1996 [(1996) 6 SCC 593]. The following operative Order was passed :- "We are of the view that the legal position that exemplary damages can be awarded in a case where the action of a public servant is oppressive, arbitrary or unconstitutional is unexceptionable. The question for consideration, however, is whether the action of Capt.
Satish Sharma makes him liable to pay exemplary damages. In view of the findings of this Court in Common Cause Case - quoted above - the answer has to be in the affirmative.
Satish Sharma's actions were wholly arbitrary, mala fide and unconstitutional. This Court has given clear findings to this effect in the Common Cause case. We, therefore, hold that Capt. Satish Sharma is liable to pay exemplary damages.
We have heard Mr. HN Salve on the question of quantum. Mr. Salve has vehemently contended that Capt.
Sharma was a part of the system which was operating before his joining as a Minister. According to him the types of wrongs were being committed even earlier on the assumption that the Minister's discretion was to be exercised on his subjective satisfaction. He has further contended that since the concept of absolute liability of public servants for misfeasance has been of recent origin in this country even while awarding exemplary damages leniency should be shown. There is some plausibility in the contentions raised by Mr. Salve. After examining all the facts and circumstances of this case and giving thoughtful consideration to this aspect, we direct Capt. Satish Sharma to pay a sum of Rs. 50 lacs as exemplary damages to the Government Exchequer. Since the property with which Capt.
Sharma was dealing was public property, the government which is "by the people" has to be compensated. We further direct Capt. Sharma to deposit the amount with the Secretary, Ministry of Finance, Government of India within nine months from today. The amount if not paid, shall be recoverable as arrears of land revenue." The present Review Petition relates to these two Judgments.
The Review Petition was put up before the Bench comprising of Hon. Bharucha and Faizan Uddin, JJ. on 28.1.1997 when the Court directed "Issue notice on the Review Petition." On notice being served on Mr. H.D. Shourie, he filed his reply to the Review Petition on 21.2.1997.
The office report dated 30th June, 1997 is to the following effect :
"In the matter above-mentioned, this Court on 28th January, 1997 directed to issue notice of the Review Petition.
Accordingly, notice was issued to both the respondents and hence the service of notice is complete as both the respondents are represented by Mr. H.D. Shourie, Respondent in person and Ms. Anil Katiyar, Advocate for Respondent No.2.
Mr. Ashok K. Mahajan, Advocate has filed Application for impleadment on behalf of Mr. Arun K.Gupta resident of Kothi No. 68, Sector VIIIA, Chandigarh and also seeking stay of further investigation by CBI during pendency of Review Petition. Since the said Application was not served on other side, a letter dated 4th March, 1997 and another letter dated 30th June, 1997 was issued to Mr. Ashok K. Mahajan to serve it on Mr. H.D. Shourie, Respondent No. 1 and Mrs. Anil Katiyar representing Respondent No. 2 and Mr. P.H. Parekh, Advocate. He was also requested to furnish proof of service but he has not furnished the same so far.
Further, Mrs. Sandhya Goswami, Advocate has also filed four separate Applications for impleadment on behalf of M/s Shiv Balak Pasi, Syed Hassan Saukat Abidi, Dharmesh Kumar and Pradeep Kumar without serving its copies on the other sides. She was asked to serve the same on all the parties and furnish proof of service but the same has not been furnished by her so far. All the Applications for impleadment as party are being circulated to Hon'ble Judges with this office report.
It is further submitted that Mrs. Anil Katiyar, Advocate has filed an Application for Clarification and modification of order dated 25th September, 1996 which has been registered as I.A. No. 6. Further she has also filed counter affidavit on behalf of Union of India deposed by Director, Ministry of Petroleum and Natural Gas, Government of India. The said Application and counter affidavit are being circulated with this office report for orders." Thereafter, the matter came up before the Bench comprising of Hon. SC Sen and Sujata Manohar, JJ., on 8.7.1997. Mr. H.D. Shourie, who had filed the Writ Petition (C) No. 26 of 1995, was present in person, but the case was adjourned to 25th of July, 1997. On 25.7.1997, the case was shown in the cause-list, but the following notice was also published in that cause list:
"TAKE NOTICE THAT the above mentioned matters listed in Court No. 8 before a Special Bench of Hon. Mr. Justice S.C. Sen and Hon. Mrs. Justice Sujata V. Manohar, as Item Nos. "C" and "D" in the Daily List for 25th July, 1997 issued on 19th July, 1997 will not be taken up for hearing and the same stand adjourned to 22nd August, 1997.
BY ORDER DATED this the 25th day of July, 1997." The case was thus adjourned to 22.8.1997 and on that date the Bench comprising of Hon. SC Sen and Sujata Manohar, JJ., adjourned the case to 9.9.1997. Mr. K. Parasaran, Senior Counsel appearing for the petitioner, was directed to give his written arguments. On 1.9.1997, Mr. Gopal Subramaniam, Senior Counsel, was appointed as amicus curiae. When the case came up before the Bench of Hon. SC Sen and Sujata Manohar, JJ., Their Lordships released the case with the further direction that it would not be treated as part-heard with them. On 27.3.1998, the case came up before the Bench of Hon. SC Agrawal and Sujata Manohar, JJ.
when the following order was passed :
"Since the argument on this petition is likely to take some time it is directed that the matter may be listed on a non- miscellaneous day. The Registrar Judicial will take appropriate directions from Hon'ble the Chief Justice for listing the matter before an appropriate bench." It was thereafter that the matter was placed before this Bench. We have heard learned counsel for the parties.
We have also heard Mr.Gopal Subramaniam, Senior Counsel, (Amicus Curiae).
Mr. K.Parasaran, learned Senior Counsel for the applicant, has contended that since the applicant was Minister of State for Petroleum in the Central Government and it was in his capacity as an essential component of the Central Government, that he had made allotment of Petrol Pumps out of his discretionary quota, his act in making the allotments shall be treated to be the act of the Central Government with the result that even if such allotments were cancelled on the ground of arbitrary exercise of power, the Court could not have legally directed exemplary damages to be paid by the Government to itself. He also contended that the jurisdiction of this Court under Article 32 was limited, unlike the vast jurisdiction of the High Courts under Article 226 of the Constitution and, therefore, in exercise of the limited jurisdiction, the Court cannot award exemplary damages for the "tort of misfeasance in office", as in the proceedings under this Article, which constitute Public Law proceedings, damages can be awarded only for the violation of the Fundamental Rights of citizens either by the Government or its officers, specially the Right to Life, but not for "Tort" for which action should have been initiated under the Private Law by filing a suit in a Court of competent jurisdiction.
Learned counsel for the petitioner contended that the petitioner being a Minister of State in the Union Cabinet was a part of the Government and his act being the act of the President, as the petitioner was in the Central Cabinet, the same could not be made the basis of action for damages under the Law of Torts and, therefore, under Public Law as well, the petitioner could not be held liable for damages or, for that matter, exemplary damages.
Relying upon the decision of this Court in Samsher Singh & Anr. vs. State of Punjab, 1975 (1) SCR 814 = AIR 1974 SC 2192, which specifically dealt with the business rules of the Union Cabinet and laid down that the act of a Minister would be treated as the act of the President or the Governor, as the case may be, learned counsel for the petitioner contended that if the petitioner, in exercise of his discretionary power, had allocated or allotted petroleum outlets to needy persons, he would be treated to have acted only on behalf of the President and his act could not be questioned in any court, including this Court, nor could the act of allotment of petrol outlets to various persons constitute a basis for damages. The contention further is that the petitioner having acted as Minister of State, his act would be treated to be the act of the entire Cabinet which, on the principle of `collective responsibility', would be treated to have endorsed the act of the petitioner in making the allotments of Petrol outlets and since the Cabinet is answerable to the Parliament, where the allotments were not questioned, the same cannot be questioned here in this Court.
We have seriously considered the contention of Mr. Parasaran, as set out above, but we are unable to agree with him on the broad proposition placed before us.
The Executive power of the Union is vested in the President under Article 53 of the Constitution. The extent of the Executive power is indicated in Article 73. The next Article, namely, Article 74 provides for a Council of Ministers to aid and advise the President. Article 75(3) speaks of the collective responsibility of the Cabinet which provides that the Cabinet shall be responsible to Parliament. Article 77 provides for the conduct of business of the Government of India and clause (3) thereof empowers the President to make rules for the convenient transaction of its business and for allocation amongst Ministers of the said business. It is in exercise of this power that rules for allocation of business have been framed under which various divisions of work to different Ministries have been indicated. Distribution of petroleum products, including petroleum outlets, is also one of the subjects which has been allocated to the Ministry of Petroleum.
The functions of the Govt. are carried out in the name of the President by Ministers appointed by him on the advice of the Prime Minister. The Executive consists of :
(a) Prime Minister and Ministers who are members of the Cabinet; (b) Ministers who are not of Cabinet rank;
(c) The Civil Service.
Since the functions of the Govt. are carried on by the Executive in the name of the President on the advice of Ministers, they (Ministers) alone are answerable to the Parliament. The Civil Service as such has no Constitutional personality or responsibility separate from the duly constituted Govt.
Article 77(1) and (2) provide that whatever executive action is taken by the Government of India, the same shall be expressed to have been taken in the name of the President.
Executive power is not defined in the Constitution.
Article 73 relating to the Union of India and Article 163 relating to the State deal primarily with the extent of executive power. In Rai Sahib Ram Jawaya Kapur vs. State of Punjab, 1955 (2) SCR 225 = AIR 1955 SC 549, the then Chief Justice Mukherjea pointed out:- "It may not be possible to frame an exhaustive definition of what executive function means and implies.
Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away." This Judgment also deals with the concept of Cabinet, the Council of Ministers, its collective responsibility and how the Executive functions subject to the control of the Legislature. It is laid down that although the President is the head of the Executive, he acts on the aid and advice of the Council of Ministers, headed by the Prime Minister, who are all members of the Legislature and since the President has to act upon the advice of the Council of Ministers, the Legislature indirectly controls the functioning of the Executive. The relevant portions are extracted below:- "Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State..... In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature? Under Article 53(1)..., the executive power of the Union is vested in the President but under Article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Govt. of States; the Governor ... occupies the position of the head of the executive in the State but it is virtually the council of Ministers in each State that carries on the executive Govt. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the Council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, `a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part'. The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions;
and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them." This decision was referred to in State of M.P. vs.
Thakur Bharat Singh, 1967 (2) SCR 454 = AIR 1967 SC 1170, wherein it was held that if the executive action of the Government affected prejudicially the rights of any citizen, such action could be justified only if it was supported by the authority of law. The concept and the extent of executive action was also examined by this Court in Naraindas Indurkhya vs. State of M.P., 1974 (3) SCR 624 = (1974) 4 SCC 788 = AIR 1974 SC 1232, in which the decision in Rai Saheb Ram Jawaya Kapur's case (supra) was followed and it was laid down that the State Government could prescribe textbooks in the exercise of its executive power so long as it did not infringe the rights of anyone. This decision was reiterated in Jayantilal Amratlal Shodhan vs.
F.N. Rana, 1964 (5) SCR 294 = AIR 1964 SC 648 and again in Bishambhar Dayal Chandra Mohan vs. State of U.P., (1982) 1 SCC 39 = 1982 (1) SCR 1137 = AIR 1982 SC 33. The whole constitutional position was reconsidered by a Seven-Judge Bench of this Court in Samsher Singh & Anr. vs. State of Punjab, 1975 (1) SCR 814 = (1974) 2 SCC 832 = AIR 1974 SC 2192, in which the decision in B.K. Sardari Lal vs. Union of India (1970) 1 SCC 411 = (1971) 3 SCR 461 = AIR 1971 SC 1547 was specifically overruled and it was held that under Article 74(1), it is the function of the Council of Ministers to advise the President over the whole of the Central field and nothing is excepted from that field by this Article. It was also pointed out that the Constitution of India has adopted the parliamentary or the Cabinet form of Government on the British model. The principle of English Constitutional Law that the King does not act on his own, but on the advice of Council of Ministers is embodied in the Indian Constitution as may be evident from the following words of Justice Krishna Iyer in that case:- "Not the Potomac, but the Thames, fertilises the flow of the Yamuna, if we may adopt a riverine imagery. In this thesis, we are fortified by precedents of this Court, strengthened by Constituent Assembly proceedings and reinforced by the actual working of the organs involved for about a `silver jubilee' span of time." It was also pointed out in this case that the words "business of the Government of India" and "the business of the Government of the State", as used in Articles 77(3) and 166(3), include "all executive business". Seervai in his treatise "Constitutional Law of India", Silver Jubilee Edition, Fourth Edition, on page 2037 has, after a critical analysis of the Judgment, extracted the following principles on the "business of the Government of India and allocation of business among Ministers" :- "(i) The expressions "business of the Government of India" and "the business of the Government of the State" in Arts. 77(3) and 166(3) includes "all executive business".
(j) "Where the Constitution required the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor as the case may be ... the satifaction required by the Constitution is not the personal satisfaction of the President or the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of government .... It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions...." Arts. 77(3) and 166(3) provide that the President or the Governor shall make rules for the more convenient transaction of the business of government and the allocation of functions among Ministers.
Rules of business and the allocation of functions to Ministers indicate that the satisfaction of the Minister or the officer is the satisfaction of the President or the Governor.
(k) Rules of business and allocation of business among Ministers are relatable to Arts. 53 and 154 which provide that executive power shall be exercised by the President and by the Governor either directly or through subordinate officers. The provisions made in Arts. 74 and 163 for a Council of Ministers to aid and advise the President and the Governor "are sources of the business." (l) Where the functions entrusted to a Minister are performed by an officer employed in the Minister's department, there is in law no delegation to that officer because the act or decision of the officer is that of the Minister: Halsbury, Vol. 1, 4th ed. para 748." 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 no 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.
The related question as to the liability of the Minister to pay damages to the Govt. will be considered by us while dealing with the "Tort of Misfeasance in Public Office" and payment of exemplary damages to the Govt.
The other aspect of the matter as argued by Mr. K. Parasaran as to the "collective responsibility" of the Cabinet with regard to the allotment of petrol outlets made by the petitioner in exercise of his discretionary quota may now be considered. It is contended by Mr. K. Parasaran that under the scheme of the Constitution, any order passed by the Minister shall be treated to be an order passed by the Cabinet which is collectively answerable to the House of the People under Article 75 (3). It is contended that an order passed by the Minister individually in favour of various persons to whom petrol outlets were allotted cannot be questioned as it was not raised before the House of the People to whom the Cabinet, as a whole, was answerable. The whole series of allotments made by the petitioner could then have been debated before the House and since this was not done, it is not open to question those allotments in this Court by a writ petition and the proceedings were meant only to embarrass and harass the Cabinet. It is also contended that the petitioner had the jurisdiction to make allotments of petrol outlets and the discretionary quota allowed to him was utilised for that purpose. Since it is not the case that the jurisdiction was, in any way, exceeded or that allotments were made in excess of the quota or for monetary consideration, the same need not have been scrutinised by this Court nor could such allotments be made the basis for awarding exemplary damages or investigation by C.B.I.
Let us examine the viability of these submissions.
Our Constitution provides for a Parliamentary form of Govt. Article 79 provides that there shall be a Parliament for the Union which shall consist of the President and two Houses known respectively as Council of States and the House of the People. Article 80 provides for the composition of the Council of States while Article 81 provides for the composition of the House of the People. Article 81 further provides that the House of the People shall consist of :
(a) not more than 530 members chosen by direct election from territorial constituencies in the States; and (b) not more than 20 members to represent the Union Territories chosen in such manner as Parliament may by law provide. Article 83 provides for the duration of Houses of Parliament while Article 85 provides for the Sessions of Parliament, prorogation of the Houses or either House and dissolution of the House of the People. Article 86 speaks of the right of the President to address and send messages to Houses while Article 87 provides for Special Address by the President after each General Election to the House of the People and at the commencement of the first session of each year. Once the election to the House of the People is complete, comes the stage for the appointment of Prime Minister and Council of Ministers to aid and advise the President as provided by Article 74. Since the elections are contested principally by the political parties who set up their candidates at the election, there is tacit understanding in keeping with the British convention, that the party which has secured the majority in the House of the People would govern while the parties which are in the minority would sit in the Parliament as members of the "Opposition." It is on account of this convention that the President invites the leader of the political party which has obtained majority, to form the Govt. The President appoints the Prime Minister and then the Ministers are appointed on the advice of the Prime Minister, who constitute the Council of Ministers. Article 75(3) provides that the Council of Ministers shall be collectively responsible to the House of the People.
The concept of "collective responsibility" is essentially a political concept. The country is governed by the party in power on the basis of the policies adopted and laid down by it in the Cabinet Meeting. "Collective Responsibility" has two meanings: The first meaning which can legitimately be ascribed to it is that all members of a Govt. are unanimous in supprot of its policies and would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a different view in the meeting of the Cabinet. The other meaning is that Ministers, who had an opportunity to speak for or against the policies in the Cabinet are thereby personally and morally responsible for its success and failure.
In the British Constitution & Politics 5th Edition by J. Harvey and L. Bather, it is said as under :
"Except when a minister explains the reasons for his resignation, parliament hears nothing of the Cabinet's current deliberations. These remain secret, and only decisions as a whole are reported to the House when policy is announced. Any leakage of divergent views held by ministers would, as during Queen Victoria's reign, seriously weaken the Government. In its decisions, 'the Cabinet is a unity to the House'. While a minister can speak against any proposal in a Cabinet meeting, he must either support the policy decided upon or resign. Recent resignations of this nature are Frank Cousins (Prices and and Incomes Bill, 1966) and Lord Longford (education cuts, 1968). But such resignations are infrequent. Ministers come from the same party and, at least initially, are fairly homogeneous in their political views. In any case, a former minister is unlikely to cross the floor of the House and join the Opposition. His disagreement with the Government is usually over only one issue, and his basic political outlook remains unchanged.
Thus the Cabinet stands or falls together. Where the policy of a particular minister is under attack, it is the government as whole which is being attacked. Thus the defeat of a minister on any major issue represents a defeat for the Government. However, today, unlike the nineteenth century, such defeats do not occur. The use of rigid party discipline ensures that the Government can always obtain a majority vote. Nevertheless, criticism may be so severe and widespread that the Government may modify its policy. If the minister identified with it feels that his prestige with the party has been badly damaged, he may resign, e.g. Sir Samuel Hoare (1935) over the proposals to partition Abyssinia.
In practice, therefore, all that collective responsibility means today is that every member of the Government must be prepared to support all Cabinet decisions both inside and outside the House." It is further provided as under :
"The doctrine of collective responsibility has practical advantages. First, it counteracts departmental separation for each minister has to be concerned with policies of other departments. Second, it prevents the policy of one department being determined unilaterally.
Since it is the Cabinet as a whole which decides, ministers are less likely to be over-influenced by their civil servants. Third, it ensures that Cabinet decisions are based on principles and not on personalities.
Collective responsibility does not apply to a minister's responsibility for his permanent officials or for his personal mistakes." In this connection, an extract from "The British Cabinet" by John P. Mackintosh, 1962 Edn., is set out below as it is also extremely relevant for this case.
"Much has been said and written about the responsibility of ministers. The discussion can easily become confused because of the different meanings that are attached to the word "responsible". Collective responsibility will be discussed below, and the first task is to consider whether there is any separate element of individual responsibility. The most common political meaning is that a certain minister will answer parliamentary questions on a given subject. A second sense arises when those in political circles appreciate that a particular policy is largely the idea of the minister, rather than the traditional policy of the party in power, and they may single out the minister for attack. For instance, in 1903-05 Wyndham was purusing his land purchase schemes for Ireland in a manner which alarmed many Conservatives and would certainly have been unlikely under any other Chief Secretary. A third sense is simply that a minister is responsible even if a policy is the work of the Cabinet as a whole but his colleagues choose to place the burden upon him. Thus Sir Samuel Hoare thought he was acting in accordance with the views of the ministry in concluding the Hoare-Lavel Pact and his decisions were subsequently endorsed by the Cabinet till opposition became acute. He was then asked to disavow and denounce his actions but preferred, "accepting his responsibility," to resign. There is, in addition, the normal moral sense of the word meaning "culpable" and a minister may, like a private individual, feel responsible if he could by greater wisdom or exertion have prevented some unfortunate occurrence.
The one aspect that remains is the alleged obligation on a minister to resign when he or one of his subordinates has blundered. The origin of this notion is fairly clear.
It dates from the 1850s and 1860s when it was reasonable to assume that a minister could watch over every significant action of his department. Even then, there would have been no need to acknowledge errors in this way but for the power of the House of Commons to move and carry a motion censuring the individual in question without necessarily dislodging the government." 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 subordinates have blundered and have acted contrary to law.
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 that 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.
Even in England, all ministers and servants of the Crown are accountable to the courts for the legality of their actions, and may be held civilly and criminally liable, in their individual capacities, for tortious or criminal acts. This liability may be enforced either by means of ordinary criminal or civil proceedings or by means of impeachment, a remedy which is probably obsolete. They are also subject to the judicial review jurisdiction of the courts. [See: Halsbury's Laws of England - Fourth Edition (Re-issue), Volume 8(2), Para 422].
Learned counsel for the petitioner contended that neither could the Court award exemplary damages against the petitioner nor could it order any C.B.I. investigation as the petitioner in making the allotment of petrol outlets had not committed any offence, much less an offence of breach of trust. It is also contended that the petitioner while making allotments out of his discretionary quota available to him as Minister of State for Petroleum, had not committed the tort of misfeasance in public office and, therefore, he was not liable to pay any damages. Mr. K.Parasaran also argued that exemplary damages under law can be awarded in addition to the damages for the "tort" alleged to have been committed but where not even damages have been awarded, there is no question of awarding exemplary damages. It is also contended that action for tort could have been initiated only in the field of private law by instituting a suit in a proper Civil Court and not under the public law, namely, in proceedings initiated under Article 32 of the Constitution particularly as intricate questions of fact were involved.
Since the question whether the action could have been initiated under the public law and whether exemplary damages could have been awarded in those proceedings relates to the question of jurisdiction, we would take up this question first.
Under Article 226 of the Constitution, the High Court has been given the power and jurisdiction to issue appropriate Writs in the nature of Mandamus, Certiorari, Prohibition, Quo-warranto and Habeas Corpus for the enforcement of Fundamental Rights or for any other purpose.
Thus, the High Court has jurisdiction not only to grant relief for the enforcement of Fundamental Rights but also for "any other purpose" which would include the enforcement of public duties by public bodies. So also, the Supreme Court under Article 32 has the jurisdiction to issue prerogative Writs for the enforcement of Fundamental Rights guaranteed to a citizen under the Constitution.
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 Article 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 mandates.
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.
The distinction between private law and public law was noticed by this Court in Life Insurance Corporation of India vs. Escorts Limited & Ors., 1985 Supp. (3) SCR 909 = (1986) 1 SCC 264 = AIR 1986 SC 1370, in which the Court observed as under:- "Broadly speaking, the Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances." Public Law field, since its emergence, is ever expanding in operational dimension. Its expanse covers even contractual matters. (See: Union of India vs. A.L.
Rallia Ram, 1964 (3) SCR 164 = AIR 1963 SC 1685; Mulamchand vs. State of Madhya Pradesh, 1968 (3) SCR 214 = AIR 1968 SC 1218, wherein the principles of restitution and unjust- enrichment were applied). (See also: State of West Bengal vs. B.K. Mondal & Sons, 1962 Supp. (1) SCR 876 = AIR 1962 SC 779 and New Marine Coal Company Limited vs. Union of India, 1964 (2) SCR 859 = AIR 1964 SC 152).
Government decisions regarding award of contracts are also open to judicial review and if the decision making process is shown to be vitiated by arbitrariness, unfairness, illegality and irrationality, then the Court can strike down the decision making process as also the award of contract based on such decision. This was so laid down by this Court in Tata Cellular vs. Union of India, (1994) 6 SCC 651 = AIR 1996 SC 11. Initially the Supreme Court was of the opinion that while the decision making process for award of a contract would be amenable to judicial review under Article 226 or 32 of the Constitution, a breach of a contractual obligation arising out of a contract already executed would not be so enforceable under such jurisdiction and the remedy in such cases would lie by way of a civil suit for damages. (See: Radhakrishna Agarwal vs. State of Bihar, (1977) 3 SCC 457 = 1977 (3) SCR 249 = AIR 1977 SC 1496). But the Court changed its opinion in subsequent decisions and held that even arbitrary and unreasonable decisions of the Government authorities while acting in pursuance of a contract would also be amenable to writ jurisdiction. This principle was laid down in Gujarat State Financial Corporation vs. Lotus Hotels Pvt. Ltd., (1983) 3 SCC 379 = AIR 1983 SC 848. This Court even went to the extent of saying that the terms of contract cannot be altered in the garb of the duty to act fairly. (See:
Assistant Excise Commissioner vs. Issac Peter, (1994) 4 SCC 104 = 1994 (2) SCR 67). Duty to act fairly in respect of contracts was also the core question in Mahabir Auto Stores vs. Indian Oil Corporation, 1990 (1) SCR 818 = (1990) 3 SCC 752 = AIR 1990 SC 1031, in which this Court relied upon its earlier decisions in E.P.Royappa vs. State of Tamil Nadu, 1974 (2) SCR 348 = (1974) 4 SCC 3 = AIR 1974 SC 555; Menka Gandhi vs. Union of India, (1978) 1 SCC 248 = 1978 (2) SCR 621 = AIR 1978 SC 597; Ajay Hasia vs. Khalid Mujib Sehravardi, (1981) 1 SCC 722 = 1981 (2) SCR 79 = AIR 1981 SC 487; R.D. Shetty vs. The International Airport Authority of India, 1979 (3) SCR 1014 = (1979) 3 SCC 489 = AIR 1979 SC 1628, as also Dwarka Das Marfatia & Sons vs. Board of Trustees of the Port of Bombay , (1989) 3 SCC 293 = 1989 (2) SCR 751 = AIR 1989 SC 1642.
Public law remedies have also been extended by this Court to the realm of tort.
In exercise of jurisdiction under Article 32 of the Constitution, this Court has awarded compensation to the petitioners who suffered personal injuries at the hands of the officers of the Government and the causing of injuries which amounted to tortious act was compensated by this Court. In Rudul Sah vs. State of Bihar, 1983 (3) SCR 508 = (1983) 4 SCC 141 = AIR 1983 SC 1086, a Three-Judge Bench of this Court awarded compensation (Rs.30,000/-) for illegal detention. In Bhim Singh vs. State of Jammu & Kashmir, (1985) 4 SCC 677 = AIR 1986 SC 494, a sum of Rs.50,000/- was awarded to the petitioner for the illegal detention of the petitioner by the State authorities. The compensation which was directed to be paid on account of police atrocities was the subject matter of several cases before this Court. A few of them are People's Union for Democratic Rights vs.
State of Bihar, 1987 (1) SCR 631 = (1987) 1 SCC 265 = AIR 1987 SC 355; People's Union for Democratic Rights Thru.Its Secy. vs. Police Commissioner, Delhi Police Headquarters, (1989) 4 SCC 730 = 1989 (1) Scale 599; SAHELI, a Woman's Resources Centre vs. Commissioner of Police, Delhi, (1990) 1 SCC 422 = 1989 (Supp.) SCR 488 = AIR 1990 SC 513;
Arvinder Singh Bagga vs. State of U.P., (1994) 6 SCC 565 = AIR 1995 SC 117; P.Rathinam vs. Union of India, (1989) Supp. 2 SCC 716; In Re: Death of Sawinder Singh Grower, (1995) Supp. (4) SCC 450 = JT 1992 (6) SC 271 = 1992 (3) Scale 34; Inder Singh vs. State of Punjab, (1995) 3 SCC 702 = AIR 1995 SC 1949; D.K. Basu vs. State of West Bengal, (1997) 1 SCC 416 = AIR 1997 SC 610; Mrs. Pritam Kaur Baryar vs. State of Punjab, (1996) 7 Scale (SP) 11 and Paramjit Kaur vs.State of Punjab, (1996) 8 Scale (SP) 6.
In cases relating to custodial deaths, this Court has awarded compensation in Nilabati Behera vs. State of Orissa, (1993) 2 SCC 746 = 1993 (2) SCR 581 = AIR 1993 SC 1960; State of M.P. vs. Shyam Sunder Trivedi, (1995) 4 SCC 262 = 1995 (3) Scale 343; People's Union for Civil Liberties vs. Union of India, (1997) 3 SCC 433 = AIR 1997 SC 1203 and Kaushalya vs. State of Punjab, (1996) 7 Scale (SP) 13.
For medical negligence, compensation was awarded by this Court in Supreme Court Legal Aid Committee vs. State of Bihar, (1991) 3 SCC 482; Dr. Jacob George vs. State of Kerala, (1994) 3 SCC 430 = 1994 (2) Scale 563 and Paschim Banga Khet Mazdoor Samity vs. State of West Bengal & Ors., (1996) 4 SCC 37 = AIR 1996 SC 2426.
Damages were also awarded by this Court in Mrs. Manju Bhatia vs. N.D.M.C., (1997) 6 SCC 370 = AIR 1998 SC 223 = (1997) 4 Scale 350.
In N.Nagendra Rao & Co. vs. State of Andhra Pradesh, (1994) 6 SCC 205 = AIR 1994 SC 2663, this Court observed as under:- "Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a Constitutional Government, the State cannot claim any immunity. The determination of vicarious liability of the State being linked with negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable the State cannot be sued. The liability of the officer personally was not doubted even in Viscount Canterbury. But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State." The difference between public and private law was again examined by this Court in Nilabati Behera vs. State of Orissa (supra). Dr. Anand, J. (as His Lordship then was) in his separate concurring Judgment laid down as under:-.lm15 "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 indeafeasible 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 Article 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 amends' 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 law.
35. 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 Article 32 or 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, is possible. The decisions of this Court in the line of cases starting with Rudul Sah vs. State of Bihar granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 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 circumspection and self- restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law." This is a classic exposition of the realm of Public Law by (Dr.) Justice Anand (as His Lordship then was), who has 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.
Mr. K.Parasaran then contended that in all the cases referred to earlier, this Court had granted damages to the petitioner as the Fundamental Right to life under Article 21 of the Constitution was found to have been violated. To that extent, the Court, according to him, can grant damages even in proceedings under Article 32 of the Constitution but where Right to Life is not involved, the petitioner would have to file a suit for damages in the Civil Court under private law jurisdiction and cannot take recourse to proceedings under public law either in the High Court under Article 226 or in this Court under Article 32. He contended that interim compensation may be granted by the Court under Article 32 as immediate relief and the whole matter may be referred to the Civil Court for determination of the amount of compensation or damages payable to the petitioner or the petitioner may be directed to approach the Civil Court.
This proposition cannot be accepted.
In M.C. Mehta & Anr. vs. Union of India & Ors., (1987) 1 SCC 395, this Court observed as under:- "7. We are also of the view that this Court under Article 32(1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right and under Article 32(2) of the court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right. The power of the court is not only injunctive in ambit, that is, preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental right already committed vide Bandhua Mukti Morcha case. If the court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Article 32 would be robbed of all its efficacy, because then the situatiuon would be that if a fundamental right is threatened to be violated, the court can injunct such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32. That would, to a large extent, emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile. We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32.
The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. We are deliberately using the words "in appropriate cases" because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the court in a petition under Article 32. The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil courts. Ordinarily, of course, a petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of civil court. It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32.
This is the principle on which this Court awarded compensation in Rudul Shah v. State of Bihar. So also, this Court awarded compensation to Bhim Singh, whose fundamental right to personal liberty was grossly violated by the State of Jammu and Kashmir. If we make a fact analysis of the cases where compensation has been awarded by this Court, we will find that in all the cases, the fact of infringement was patent and inconvertible, the violation was gross and its magnitude was such as to shock the conscience of the court and it would have been gravely unjust to the person whose fundamental right was violated, to require him to go to the civil court for claiming compensation." Thus, where 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 proceedings.
The decisions relied upon by Mr. Parasaran, namely, P. Rathinam vs. Union of India & Ors.(1989) Supp. 2 SCC 716 and In Re: Death of Sawinder Singh Grover (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.
In view of the natural affinity with the British legal system, particularly as both the learned counsel have referred to and relied upon the cases relating to public law decided by the Courts in England, we may consider the question from that angle and in that light.
In England, the position is not much different. In 1977, when certain procedural changes were brought about on the recommendations of the Law Commission and Order 53 was introduced, it became possible for a litigant to make an application for judicial review and claim, in such application, damages also against public bodies. Under the remedy of judicial review, it is possible to review not only the merits of the decision in respect of which the application for judicial review is made, but the whole decision-making process also. A decision of inferior court or a public authority could be quashed by an order of Certiorari made on an application for judicial review where that court or authority acted without jurisdiction or exceeded its jurisdiction or failed to comply with the rules of natural justice or where there was an error of law apparent on the face of the record or the decision was unreasonable in the Wednesbury sense (that is, no reasonable person could have come to the conclusion to which the public authority had arrived at). In view of the Supreme Court Act, 1981, read with Order 53, it became possible for the High Courts to grant prerogative orders for mandamus or Prohibition and Certiorari in those classes of cases in which it had power to do so immediately before the passing of that Act and by virtue of Order 53, the court also got a power even in judicial review proceedings, to grant declaration and injunctions and to award damages.
If the proceedings were directed to challenge the decision of a public law nature, and were not initiated for enforcement of private rights, an application for judicial review was the only permissible course. It may be pointed out that one of the restrictions on the making of an application for judicial review is that the person has to disclose "sufficient interest" and obtain leave of the court. The Supreme Court Act, 1981, read with Order 53, Rule 3, indicates that no application for judicial review can be made (either in a civil or criminal case) unless the leave to apply for judicial review has been obtained. The purpose of this requirement is to eliminate frivolous, vexatious or hopeless application for judicial review and to ensure that an applicant is allowed substantive hearing only if the court is satisfied that there is a case fit for further investigation. As pointed out earlier, the person applying for judicial review has to disclose that he has a "sufficient interest" in the matter to which the application relates. This is what is provided by Section 31(3) of the Supreme Court Act, 1981 and Order 53 Rule 3(7).
In R. v. Horsham Justices 1982 QB 762 = 1982 (2) All ERs 269, a newspaper reporter and the National Union of Journalists were held to have locus standi to apply for judicial review to quash the order of Magistrate made under the Contempt of Courts Act, 1961 prohibiting the publication of any report of committal proceedings until the commencement of the trial.
At some stage, particularly between the 1920s and 1960s, it was thought that prerogative orders of Certiorari, Prohibition and Mandamus only lay against persons or bodies with judicial or quasi judicial functions and did not apply to an Authority exercising administrative powers. But this distinction between judicial and administrative activities was obliterated by the decision of the House of Lords in Ridge v. Baldwin 1964 AC 40 = 1963 (2) All ERs 66. The effect of this decision is that the judicial review lies not only against an inferior court or tribunal, but also against persons or bodies which perform public duties or functions.
Thus, judicial review would lie against persons and bodies carrying out public functions. But it would not lie against a person or body carrying out private law and not public law functions. In such cases, the proper remedy is by way of action for a declaration and, if necessary, an injunction.
There is also a self-imposed restriction on the exercise of power of judicial review which is to the effect that the courts would not normally grant judicial review where there is available another avenue of appeal or remedy.
In R. v. Epping & Harlow General Commissioners 1983 (3) All ERs 257, the court observed :
"It is a cardinal principle that, save in the most exceptional circumstances, the jurisdiction to grant judicial review will not be exercised where other remedies are available and
