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Judgment
Vinod K. Sharma, J.—The Petitioner seeks a Writ in the nature of Declaration, to declare that the actions of the first Respondent taken
against the Petitioner viz., demolishing of their property and suspension of stevedoring license are unlawful, ultra vires, mala fide, arbitrary,
unreasonable, unjust, perverse and vindictive, therefore are violative of Articles 14, 19, 21 of the Constitution. It is prayed that orders be in
contravention to the All India Service (Conduct) Rules 1968, consequently direct the first Respondent to pay Rs. 3,00,00,000/-(Rupees Three
Crores only) with interest to the Petitioner firm for causing monetary loss, harassment, mental agony, and hardship and further to direct the second
Respondent to take appropriate steps with the concerned Government Departments for payment of the amount claimed to the Petitioner from the
first Respondent''s account for misuse of office, and abuse of power, and for infringing the fundamental rights of the Petitioner.
The relief of Declaration, to declare, the actions of the first Respondent against the Petitioner to be in contravention to the All India Service
(Conduct) Rules 1968, and a direction to the second Respondent / Union of India for effecting recovery is not competent under Article 226 of the
Constitution of India, as damages cannot be determined in a petition under Article 226 of the Constitution of India, being a dispute of fact, which
require evidence.
On earlier occasion, the Petitioner filed W.P. Nos. 1247 and 1248 of 2004, in which the prayer made by the Petitioner was for allotment of
land. The writ petitions filed by the Petitioner were ordered to be dismissed, as it raised disputed questions of fact. After the dismissal of the writ
petitions, the Petitioner was ordered to be evicted under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 on
19.05.2005.
The Petitioner preferred an Appeal against the order, but failed to get an interim order of Stay.
The Petitioner approached this Court, by moving C.R.P. No. 514 of 2005. It was during the pendency of the Revision Petition, that the matter
was settled between the parties, as the Respondent, on receipt of the monthly rent in respect of total area of 16,000 Sq.mts., allotted area
measuring 6,485 Sq.mts with effect from 01.11.2005 for a period of 11 months. The licence granted in favour of the Petitioner under settlement
expired on 30.09.2006.
The Petitioner made a request for its renewal, but the licence was not renewed, and the Petitioner was directed to remove the temporary shed,
and other superstructures put up by him.
This order was challenged in W.P.(MD)Nos. 933 of 2007. But, the prayer made in the writ was for issuance of a Writ of Mandamus, for
renewal of licence. The Petitioner, on realising that the necessary relief to challenge the order was not claimed, filed W.P.(MD) No. 999 of 2007,
for issuance of a writ in the nature of Certiorari, to quash the order, refusing the renewal, and the order directing removal of the materials from the
site.
Both the writ petitions were disposed of by this Court, by a common order dated 07.08.2007, wherein it was held as under:
Heard Mr. K.Srinivasan, learned Counsel for the Petitioner and Mr. V.T.Gopalan, Additional Solicitor General appearing for the Respondents.
De hors the narration of facts indicated above, the sole dispute raised in both the writ petitions, narrows down to the action of the Respondent in
not granting renewal of the license to the Petitioner in respect of the land of an extent of 6,485 Sq.mts with effect from 01.10.2006. According to
the Petitioner, the Respondent acted arbitrarily in not granting renewal of the license to the Petitioner alone, though the Respondent had granted
renewal in favour of other exporters similarly placed like him.
Upon considering the averments and entire set of documents filed on both sides, I am of the considered view that the Respondent does not
appear to have acted arbitrarily. This conclusion is inevitable on account of two communications sent by the Petitioner.
By a letter dated 19.07.2006 the Petitioner sought for renewal of the license with effect from 01.10.2006. But unfortunately by two
subsequent letters dated 21.08.2006 and 22.08.2006, the Petitioner had given up his right to seek renewal of the license. The letter dated
21.08.2006 sent by the Petitioner to the Respondent reads as follows:
21.08.2006
The Traffic and Estate Manager,
Tuticorin Port Trust,
Tuticorin.
Dear Sir,
SUB:LICENSED AREA -6485Sq.mt -SURRENDER -REG.REF: LICENSE No. T-31/19/2003-04/C/D.2029 DT.05.11.2005
We are willing to surrender the said licensed area as we have less handling of goods meant for export at present. When the situation improves. We
shall be pleased to approach your goodselves for allotment of the said licensed area to us. Kindly oblige. Thanking you, Yours faithfully,
For VICNIVAAS AGENCY
The letter dated 22.08.2006 sent by the Petitioner to the Respondent reads as follows:
22.08.2006
The Traffic & Estate Manager, Tuticorin Port Trust, Tuticorin.
Dear Sir, SUB:SURRENDER of LICENSED AREA -STRUCTURES AS STORAGE SHED -REG.
Further to our letter dt. 21st instant, we hereby inform your goodselves our No. objection for the new allottee to utilize our structures used as
storage shed. We request you to kindly allow us to take possession of the same upon vacation by the new allottee. Please oblige. Thanking you,
Yours faithfully,
For VICNIVAAS AGENCY
The above two letters dated 21.08.2006 and 22.08.2006 make it clear that the Petitioner had actually gone back on his request made earlier
for the renewal of the license, by his letter dated 19.07.2006. Therefore, this is not a case where the Respondent passed an order rejecting the
request of the Petitioner for renewal of the license. The letters clearly indicate that the Petitioner did not want the renewal of the license. This
conclusion is inevitable on account of one more fact, namely, the Respondent offered renewal of all licenses for a period of 30 years at one stroke.
But the Petitioner declined on the ground that he could not pay the entire rental amount upfront.
Mr. K.Srinivasan, learned Counsel for the Petitioner contended that the letters dated 21.08.2006 and 22.08.2006 have to be read and
understood in the context of the discussions held between the Petitioner and the officials of the Respondent on 17.08.2006. According to him, an
understanding was reached on 17.08.2006 whereby the Food Corporation of India was permitted to occupy the premises. But unfortunately the
letters dated 21.08.2006 and 22.08.2006, do not reflect any discussion that took place on 17.08.2006. There is not even a reference to any such
meeting held on 17.08.2006 in the letters dated 21.08.2006 and 22.08.2006. The contents of these two letters cannot be improved at this stage
by the Petitioner referring to discussions that allegedly took place between him and the representatives of the Respondent. The license granted to
the Petitioner was under a contract. The terms of the contract and the request of the Petitioner originally made in his letter dated 19.07.2006 and
subsequently, made in his letters dated 21.08.2006 and 22.08.2006, have to be read and understood only from their own contents and not from
any extraneous factors to which there is No. reference or whisper in the said letters.
In view of the aforesaid letters dated 21.08.2006 and 22.08.2006, I am of the considered view that the Respondent did not actually refuse to
renew the license. It is only the Petitioner who surrendered the license by virtue of those letters and hence, he is now estoped from taking a
contrary stand.
The learned Counsel for the Petitioner contended that he had put up temporary shed and other superstructures at a very enormous cost and
that those structures have been removed by the Respondent hastily, causing heavy loss and damage. But the same is not the subject matter of the
writ petition. It cannot also be the subject matter of the writ petition since the allotment orders themselves make it incumbent upon the Petitioner to
remove any temporary sheds put up by him. In any case if the Petitioner is aggrieved by the action of the Respondent giving raise to a claim for
damages, this is not the forum where the Petitioner can ventilate such a grievance. A claim for damages will have to be made only before the Civil
court of competent jurisdiction.
Therefore, both the writ petitions are dismissed. However, the learned Counsel for the Petitioner submitted that the Respondent has in their
possession more than four lakh Sq.mts of land and still there is scope for the Respondent to consider the request of the Petitioner and allot either
the same land or any other land. If that is so, it is always open to the Petitioner to make any such request and such request may be considered by
the Respondent in accordance with law. No. costs. Consequently, connected miscellaneous petitions are also dismissed.
It is not in dispute, that now, the licence stands renewed and the Petitioner is functioning.
In this writ petition, the action and the relief claimed by the Petitioner is on the following grounds:
(a) The actions of the first Respondent, as a member of Indian Administrative Service, caused against the Petitioner are unfair, unreasonable,
arbitrary, illegal, capricious and whimsical. They are in violation of fundamental rights of the Petitioner guaranteed under Articles 14, 19 and 21 of
the Constitution of India, and therefore amenable to the writ jurisdiction under Article 226 of the Constitution of India. The first Respondent acted
in malice, ill-will, and mala fide against the Petitioner, and infringing the Constitutional rights. The acts are done wrongfully and willfully without
reasonable cause. They are deliberate acts disregarding the rights of the Petitioner;
(b)The conducts of the first Respondent, a member of All India Service, are violative of Conduct Rules prescribed in All India Service (Conduct)
Rules 1968. Therefore, this writ is maintainable. Union of India and Others Vs. K.K. Dhawan, ; Union of India and others Vs. A.N. Saxena, .
(c) Thefirst Respondent being a person performing public duty is covered under ''authority'' used in Article 226, and therefore the maintainability of
this writ. The duty imposed on him by the Law is in the nature of positive obligation owed to the people. By his abuse of power and special status,
the first Respondent had caused hardship, mental agony, harassment and huge business loss to the Petitioner and, thus infringing into their
fundamental rights as enshrined under Article 14, 19 and 21.
(d)The actions of the first Respondent are contrary to the mandate of law. He violated the statutes, and other rules & Regulations issued by the
Government which he ought to have adhered to and followed. Therefore, the writ under public law remedy is maintainable.
(e) It is the principle of cardinal relationship that No. person shall be allowed to take advantage of his own wrong-doings, commission and
omissions. The first Respondent having committed gross violation of duties and responsibility, and having acted in contravention to the laws of the
land, should not be allowed to take advantage of his own wrong doings, misconduct, and misbehavior, and leave the Petitioner caused with
harassment, mental agony, and huge monetary loss.
(f) Thefirst Respondent took adverse actions against the Petitioner in breach of natural justice. No. person however might he may be with vested
power and authority derived from Government position should not be allowed to go scot-free and should not be left above law for his violative
actions against the principle of natural justice by his misconduct and misbehavior. The first Respondent by abusing his power of office acted in
unreasonable, unfair, and arbitrary manners and in violation of principle of natural justice; thus affecting the fundamental rights of the Petitioner
guaranteed under Constitution. It is the principle of natural justice as contained in Article 14 that is vital to the Rule of Law. They inject a sense of
fair play and prevent arbitrariness in decision making. The principles of natural justice do not recognize any national frontier and they have universal
application. Therefore, the action of first Respondent being arbitrary in nature is hit by the principle of natural justice.
(g) Every action of the Government or its functionaries must satisfy the test of ""reasonableness"". The entire action of the first Respondent against
the Petitioner failed to satisfy the test of ""reasonableness"", and therefore such actions, deeds, and decisions are unconstitutional. The first
Respondent being a member under special law of the land and revered in high esteem by Government and public, must understand correctly the
law that regulates his decision making power and he must give effect to the same. Otherwise, it would result in illegality, as found in his decisions
and actions against the Petitioner.
(h)It is a public law remedy enforceable under Article 226 of the Constitution when the actions of the authority falls in the realm of public law -be it
a legislative act of the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. Public
authorities are creatures of statutes and are endowed with powers by statutes creating them. The crux of the matter, therefore, is that the authorities
ought to function within the limits of their powers, and that the Administration ought to function according to law. The role of the courts is to keep
the bodies including civil servants within their allocated authority or jurisdiction. Excess or abuse of statutory jurisdiction is quashed or prohibited as
ultra vires. Writs are public law remedies and are designed to redress individual grievances against public officials when there is infringement of
fundamental rights caused by the action of the officials. Under Article 226, writs can be issued to any ''person or authority'' performing public duty
not only for enforcement of a fundamental right but also a legal right.
(i) Being themember of All India Service and being given the office of public body, examining and testing the validity of the actions of the first
Respondent would lie within the jurisdiction of the writ court to exercise the power of judicial review under Article 226 of the Constitution. Judicial
review is permissible if the impugned action is against law or in violation of the prescribed procedure or is unreasonable, irrational or mala fide. A
discretion which encourages illegality or perpetuates an illegality cannot be exercised. If the Apex Court finds that the authorities had not taken
action required of them by law and their inaction is jeopardizing the right to life of the citizens of this country or any section thereof, it is its duty to
intervene. When there is illegality or irrationality or procedural impropriety, in an administrative action, that becomes subject to judicial review.
Malice in law can also be a ground for judicial review.
(j) Thedoctrine of fairness is applicable even in administrative actions of the authorities as has been well settled by the Courts of law and if the test
of fairness is applied such orders must be justified by some grounds in the interest of administration and in absence thereof such action can be held
to be arbitrary, perverse and unfair, and also violative of Article 14 and 16 of the Constitution of India from which the requirement of fairness
emerges which is inverse to mala fide and arbitrariness which are basically two sides of the same coin. Manoj Kumar Verma Vs. State of Bihar
and Others, .
(k)Article 14 takes within its ambit right to be treated fairly and reasonably and embraces within its mandate against arbitrariness in any sphere of
State activities. This right further includes within its ambit to get redress is a part of fundamental right of equality. Mrs. Maneka Gandhi Vs. Union
of India (UOI) and Another, . Further, it is submitted that any arbitrary action whether in the nature of administrative or legislative or quasi judicial
power is liable to attract the provision under Article 14 of the Constitution. The exercise of the power whether legislative or administrative will be
set aside if there is manifest error in the exercise of power by such machinery or the exercise of the power is manifestly arbitrary. When the power
is exercised on facts which do not exist they are patently erroneous. (Sree Sitaram Sigar Company AIR 1941 FC 1277).
(l) It is the doctrine of legitimate expectation that as a member of All India Service, the first Respondent, who has constitutional duty, obligation for
good governance of government bodies, gain the faith and confidence of the public in the Government administration, and duty bound to uphold the
laws of the land, is expected to do good to the people in courteous manner and conduct the business of the Government and his decisions in
lawful, fair and reasonable manners as provided under Law. His actions must be manifests of concept of reasonableness. However, the first
Respondent failed in good governance by his misconduct and unlawful actions. His actions against the Petitioner are vindictive, mala fide, ultra
vires, and bad in law, and fail to satisfy the requirement of non-arbitrariness. He further failed to consider and give due weight to the reasonable or
legitimate expectation of the persons likely to be affected by his administrative decisions. A bona fide decision of any public authority would satisfy
the requirement of non-arbitrariness, reasonableness and withstand judicial scrutiny.
(m)It is the principle of equity of law and equality before law, that No. person is above law and all are equal before law. The first Respondent,
having the vested power as a member of All India Service unlike any ordinary citizen, was expected to discharge his duties as per law. He was to
be fair, just, and bona fide in his dealings. He should maintain absolute integrity, devotion to duty, and do nothing which is unbecoming of a
Government Servant. He should not involve in falsification of Government records, nepotism, dishonest acts, misuse of official position, and false
claims on the Government. He should not involve in misconduct and misbehavior. However, the first Respondent acted in contravention to what
was expected to be performed by him under the civil service and acted in violation of Articles 14, 19 and 21. Therefore, by his misconduct, he
became unbecoming of a government servant.
(n)It is the law of tort of misfeasance in public office, in other words, the tort of abuse of office by a public officer maliciously in the performance of
his duty with the intent of inflicting or injury to others. The first Respondent knowingly acted in unlawful manner and caused damages, hardship,
harassment, and mental agony to the Petitioner. Holding public office, he indulged in deliberate maladministration and other unlawful acts against
the Petitioner.
(o) The Apex Court in Common Cause, A Registered Society Vs. Union of India and Others, explained that the tort has been defined as
malicious abuse of power, deliberate maladministration and also other unlawful acts causing injury. ""Misfeasance in public office"" is the name given
to the tort of deliberate abuse of power. The tort imposes liability on a public officer who does an act which to his knowledge amounts to an abuse
of his office and which causes damage"". There must be an identifiable 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 claimant that the relief
could have been granted and damages awarded to him. The Court emphasized that the whole gamut of law of torts is compensatory in nature.
Damage is awarded to compensate the loss caused to a person on account of violation of his interest.
(p)As stated by De Smith the principle underlying this tort that, ""A public authority may be liable where there is an exercise or non-exercise of
public power:(i) which is either affected by malice towards the Plaintiff, or (ii) the decision maker knows is unlawful; and the Plaintiff is in
consequence deprived of a benefit or suffers other loss"".
(q)For the intentional wrong -doings, misuse of office, abuse of power, misconducts, and actions against the Canons of Law, the first Respondent
should be accountable, responsible and liable, and not the Government or departments because he was legally and statutorily bound to discharge
his duties as per law and rules & Regulations of Government. But he defied the statutes and acted in misconduct, causing the Petitioner to suffer
huge loss. In order to avoid this kind of malpractices, malfunctioning, 19 and other irregularities by public officers, strict precedents should be
created by the Higher courts of the Land.
(r) Withhis malice and actions bad in law, the first Respondent damaged his image, reputation, and office of high esteem. Apart from that, with his
mala fide and reckless actions, he is spoiling the faith of the people in the Government for good governance as well as the good image and
reputation of other good and efficient civil officers from All India Service. Therefore, he should be fixed the responsibility and liable for the ill-will,
wicked, unlawful actions.
(s) ThePetitioner being directly aggrieved by the misconducts of the first Respondent and having undergone mental agony, harassment and
hardship, besides suffering huge monetary loss have the locus standi to maintain this writ petition and prayers sought for in the writ petition.
The grounds raised hereinabove, cannot be decided in the writ petition, in view of the previous order passed by this Court, holding that the
action of the first Respondent was not arbitrary, and giving opportunity to the Petitioner to file a suit for damages, if so advised.
It is now well settled, that the right, which are available to the parties at the time of filing of the writ petition, if not raised, would be deemed to
have been waived, under Order 2 Rule 2 Code of Civil Procedure. The lapses alleged against the first Respondent are all prior to filing of the
previous writ petition, on which the finding has already been recorded, that the action of the first Respondent were not arbitrary, and liberty was
given to the Petitioner to claim damages, if any, in the Civil Court. In spite of the specific order, the Petitioner has chosen to file the present writ
petition.
13 The learned Counsel for the Petitioner placed reliance on the decision of the Hon''ble Supreme Court in Sarva Shramik Sangh Vs. Indian Oil
Corporation Ltd. and Others, to contend that this writ petition is competent.
The reliance placed by the Petitioner on the decision is mis-conceived. The Hon''ble Supreme Court has not laid down that the repeated writs
can be filed on the same a cause of action. The Hon''ble Supreme Court has laid down that when a question is not decided on merits, then, the
point will not be res judicata in the different proceedings. This judgment can be used by the Petitioner, to oppose the plea of res judicata, if raised,
in Civil Suit, if any, to be filed, in pursuance to liberty granted by this Court on earlier occasion.
The judgment of the Hon''ble Supreme Court, by No. stretch of imagination, can be read to mean that successive writs can be filed in this
Court.
In the present case, the question is not of res judicata, but maintainability of the writ petition, in view of the previous judgment reproduced
hereinabove.
In view of the earlier decision of this Court, this writ petition is not competent, nor it is permissive for this Court to go into the disputed
questions of facts, to determine the damages, especially when in the previous writ, directions have been issued to the Petitioner to approach the
Civil Court, if so advised.
For all the reasons stated hereinabove, this writ petition is dismissed as not competent.
No costs. The connected M.P. (MD) No. 1 of 2009 is closed.