{"id":1207,"date":"1996-11-08T00:00:00","date_gmt":"1996-11-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shiv-sagar-tiwari-vs-union-of-india-ors-on-8-november-1996"},"modified":"2015-05-07T18:11:08","modified_gmt":"2015-05-07T12:41:08","slug":"shiv-sagar-tiwari-vs-union-of-india-ors-on-8-november-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shiv-sagar-tiwari-vs-union-of-india-ors-on-8-november-1996","title":{"rendered":"Shiv Sagar Tiwari vs Union Of India & Ors on 8 November, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shiv Sagar Tiwari vs Union Of India & Ors on 8 November, 1996<\/div>\n
Bench: Kuldip Singh, B.L. Hansaria<\/div>\n
           PETITIONER:\nSHIV SAGAR TIWARI\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA & ORS.\n\nDATE OF JUDGMENT:\t08\/11\/1996\n\nBENCH:\nKULDIP SINGH, B.L. HANSARIA\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t\t O R D E R
\n     One of  the issues\t for consideration before this Court
\nin this\t public interest  petition is  the validity  of\t the
\nallotments of  52 shops\/stalls\tmade by Smt. Shiela Kaul the
\nthen minister for Housing land Urban development, Government
\nof India.\n<\/p>\n
     While monitoring  this  case,  this  court\t has  passed
\nvarious interim orders from time to time. It would be useful
\nto quote  three such  orders. The relevant part of the order
\ndated April 17, 1996 is as under:\n<\/p>\n
     “The material  placed before  us inter  alia, discloses
\nthat 41\t shops\\stalls allotted on July 3, 1995 were in total
\ncontravention of the rules\/policy approved situated in Lodhi
\nRoad Complex  – I  & II.  Hanuman Road\tMarket. Baba  Kharak
\nSingh Marg market, DIZ area Market, and Pleasure Garden near
\nLajpat Nagar  Market. The  material on\tthe  record  further
\nshows that  the said  43 shops\/stalls  were allotted by Smt.
\nshiela\tKaul  without  issuing\tany  public  notice\/inviting
\napplications  from   the  eligible   persons  which  was  in
\nviolation of  the policy  formulated by\t her on December 26,
\n1994. The  material also  discloses that orders of allotment
\nin respect  of said  41 shops\/stalls  were  passed  by\tSmt.
\nShiela Kaul  on June  7, 1995  (5 shops\t and 36 stalls). The
\nmaterial further  discloses that all the six shops have been
\nallotted by  her  to  her  own\trelations\/employees\/domestic
\nservants of  her family\t members and family friends. She has
\nallotted two  shops to\ther two\t grand-sons, one shop to the
\nmaid servant  of her  son. Shri Vikram Kaul, who is residing
\nin Dubai. One shop to Handloom Manager of the firm, owned by
\nher son-in-law\tand another shop to a close friend. One shop
\nhas been  allotted to  the nephew  of her minister of state,
\nShri P.K.  Thungon. It\tis further  on the record that while
\nmaking allotments in respect of stalls she has allotted most
\nof the\tstalls to  the relations,  friends of  her  personal
\nstaff and  officials of\t Directorate of\t Estate. The details
\nand the\t names of  Estate. The\tdetails\t and  the  names  of
\nallottees and  their relationship  have also  been placed on
\nthe record.”\n<\/p>\n
     The relevant  part of  the order dated July 19, 1996 is
\nas under:\n<\/p>\n
     “Mr. N  N. Singh,\tSuperintendent of  Police, CBI,\t New
\nDelhi has  placed on  record interim report No. 3 dated June
\n17, 1996  and Interim  Report  No.  4  dated  July  separate
\npreliminary enquiry  was registered against Smt. Shiela Kaul
\nand others  in the matters of allotment of shops\/stalls made
\nby her\ton June\t 7,1996 and  July 3,  1995 in  favour of her
\nclose relations\/friends of her personal Estate. According to
\nthe  report,   the   preliminary   enquiry,   prima   facie,
\nestablishes that  Smt. Shiela  Kaul had\t abused her official
\nposition as  the Minister  for Urban Development and she had
\nentered\t into\ta  criminal  conspiracy\t with  some  of\t the
\nacquaintances and  her personal staff, pursuant to which she
\nin abuse  of her official position made these allotments and
\ncaused\twrongful   loss\t to   the  Government  by  effecting
\nallotments on economical licence fees basis without inviting
\nany tender  or by  issuing public  notice for  inviting\t the
\nresponse from  the general  public from the point of view of
\nearning maximum\t revenue for  the Government. A regular case
\nunder Section 120-B, 420, 468\/471 IPC and Section 13(2) read
\nwith 13(1)  (d) of  the Prevention  of Corruption Act, 1988,
\nhas been  registered against  Shiela Kaul and her additional
\nPrivate Secretary Rajan S. Lala and others.\n<\/p>\n
     The  order\t dated\tSeptember  6,  1996  to\t the  extent
\nrelevant is as under:\n<\/p>\n
     “Pursuant to  this Court`s\t order dated  July 19, 1996,
\nthe Director  of Estates  has filed its report along with an
\naffidavit regarding  the shops\tand stalls  allotted by Smt.
\nShiela Kaul.  It is  stated that  from 1992 onwards 52 shops
\nhave  ben   sanctioned\tby   the  then\tMinister  for  Urban
\nDevelopment (Smt.  Shiela Kaul)\t out of\t which 7  shops were
\nallotted by Smt. Shiela Kaul before she herself had approved
\nthe policy  in 1994  for disposal  of the  shops  on  tender
\nbasis. It  is further  stated in the affidavit that 45 shops
\nwere allotted by Smt. Shiela Kaul after 1994 in violation of
\nthe policy framed by the Ministry.\n<\/p>\n
     The  gist\tof  the\t objections  filed  by\tthe  various
\nallottees have\tbeen  enclosed\talong  with  the  affidavit.
\nBefore any  action is  taken, we  consider it appropriate to
\ngive an\t opportunity of\t hearing to  all these\tpersons. We,
\ntherefore,  direct   the  Director   of\t estates   to  issue
\nindividual notices  to these  42 persons  to  be  personally
\npresent in  this Court\tor through  their counsel  to  argue
\ntheir point  of view  in respect of their objections on 27th
\nSeptember, 1996 at 2 PM. They shall show cause to this Court
\nwhy their  allotment be\t not cancelled\tand why\t they be not
\nburdened with damages.”\n<\/p>\n
     This Court\t by the\t judgment dated October 11, 1996 has
\ncome to\t the conclusion\t that the  allotments of the said 52
\nshops\/stalls  made  by\tSmt.  Shiela  Kaul  were  arbitrary,
\ndiscriminatory, unconstitutional  and as such were liable to
\nbe quashed.  This Court\t quashed the  said allotments on the
\nfollowing reasoning:\n<\/p>\n
     “The CBI  has since  inquired into\t the matter  in some
\ndetail and has by now submitted 4 Interim Reports. According
\nto  the\t  CBI,\torders\t of  allotment\tin  respect  of\t the
\nshops\/stalls in\t question were\tpassed by  Smt. Shiela Kaul,
\nthe then Minister of Urban Development and ” all the 6 shops
\nhave\tbeen\t allotted    by\t    her\t   to\t  her\t own
\nrelation\/employees\/domestic servants  of her  family members
\nand family  friends. She  has allotted\t2  shops  to  her  2
\ngrandsons, one\tshop to\t the maidservant  of her shop to sh.
\nVikram Kaul  who is  residing in Dubai, one shop to handloom
\nmanager o  the firm owned by her son-in-law and another shop
\nto a  close friend. One shop has been allotted to the nephew
\nof the\tminister of  State, Sh.\t P.K. Thungon.\tWhile making
\nallotments in  respect of  stalls, she\thas allotted most of
\nstalls to  the relations\/friends  of her  personal staff and
\nofficials of Dte. of Estate.” The CBI has also reported that
\nSmt. Shiela  Kaul  had\tmade  ten  different  categories  of
\npersons as  the basis for deciding allotments, but even this
\ncategorisation was  not adhered\t to while making allotments.\n<\/p>\n
The    further\t   findings    are;\t(1)    Many    other
\nOrganisations\/persons who  had also applied for allotment of
\nshops\/stalls from  time to  time  were\tnot  considered\t for
\nallotment of  shops\/stalls to  them”: and (2) – “At the time
\nof discretionary allotments made by Smt. Shiela Kaul in 1992
\nand 1994  persons who  were relations  of her personal staff
\nwere considered and allotted shops……”\n<\/p>\n
     Question is  whether they\twere selected  in accordance
\nwith law,  which aspect as its importance because apparently
\na large\t number of  other persons  could as well fall within
\nthe categories\tin question  and had  applied also? From the
\nreport of  the CBI  it is  clear that the allottees had been
\nselected, not by following the tender system, as required by
\nthe policy  of 1994,  but because of their relationship with
\nthe minister  or her  personal staff,  or being employees or
\nfriends of  such persons. If that be so, the allotments were
\nwholly question\t is what  is required to be done to undo the
\nwrong and  how the wrong doer is to be dealt with within the
\nparameters known to law.”\n<\/p>\n
     Finally in para 18 of the judgment, this Court directed
\nas under :\n<\/p>\n
     Secondly,\tSmt.   Shiela  Kaul,  who  was\tprima  facie
\npersonally responsible for the illegal allotments, has to be
\nasked to  show cause  as to why damage should not be awarded
\nagainst her for her alleged misuse of power. So, a notice be
\nissued to  her to  show cause why she should not be asked to
\npay such  sum as damages, for each of the illegal allotments
\nmade by\t her, as  this Court would deem just and proper. The
\ncause would  be shown  within three  weeks of the receipt of
\nthis order.”\n<\/p>\n
     Pursuant to  the above  quoted directions, a show cause
\nnotice was  issued  to\tSmt.  Shiela  Kaul.  She  has  filed
\naffidavit in reply to the show cause notice.\n<\/p>\n
     Smt. Shiela Kaul was arrayed ass respondent in the writ
\npetition. This\tCourt has  been monitoring  this case  for a
\nperiod of  about 2 years. Various interim orders were passed
\nfrom time  to time.  Despite ample  opportunity available to
\nher Smt.  Shiela Kaul  did not\tchoose to  file any counter-
\naffidavit in  this Court.  Dr. Rajiv Dhawan, learned counsel
\nappearing for  Smt. Shiela  Kaul has very fairly stated that
\nher client  cannot take\t her case  higher than\twhat has ben
\nstated in  the affidavit  filed on  behalf of  the Union  of
\nIndia. The learned counsel has relied upon para 6 & 7 of the
\naffidavit dated\t September 6,  1996 filed  by  Harcharanjeet
\nSingh, Director\t of Estates,  Ministry of  Urban Affairs and
\nEmployment. On\tbehalf of Union of India. The said paras are
\nas under :\n<\/p>\n
     “6.  That the  Ministry of\t Works & Housing (renamed as
\nministry of  Urban Affairs & Employment) on 24th March, 1979
\nhad issued  the policy\tto be  adopted for  development, and
\nconstruction  of  shopping  centres  in\t various  Government
\ncolonies in Delhi. A copy of the Office Memorandum issued in
\nthis regard  is given  as Annexure-R-V. The salient features
\nof the policy are indicated as follows.\n<\/p>\n
     i)\t  The shops  under construction\t in convenient\/local
\nshopping centres  in the  sanctioned scheme would be sold by
\nauction by  the Land  &\t Development  Officer  after  fixing
\nminimum reserve\t price\tin  consultation  with\tthe  Finance
\nDivision.\n<\/p>\n
     ii)  In respect of the shopping centres which are to be
\nconstructed in various colonies the L & DO would auction the
\nsites for various purposes on perpetual leasehold basis.\n<\/p>\n
     iii) Such\tshops\tthat  are   constructed\t multistorey
\nbuildings would be taken in the books of Director of Estates
\nwould allot the same on licence, fee basis.\n<\/p>\n
     iv)  While the  above was\tthe  general  policy  to  be
\nadopted in future (after 24th March, 1979) exceptions may be
\nmade if the circumstances so warranted.\n<\/p>\n
     7.\t  The records  of the  Director of  Estates indicate
\nthat after  the issue  of these\t instructions in March 1979,
\nthe Office of L & D O has not been able to auction any shops
\nin any\tof the\tshopping  centres  in  Government  colonies,
\ndespite the  efforts made  by the  Office of  L &  D  O\t was
\nconsidered too\thigh and no bidders came forward for auction
\nof shops.  At present,\thave been taken by various Ministers
\nto allot the shops on licence fee basis are with the Central
\nBureau of  Investigation. In  the absence  of records  which
\nwere not  the exact  position in  respect of each shop which
\nhas been  given on  licence fee\t basis after  the policy  as
\nindicated above\t came into  force. However,  on the basis of
\nthe individual files it is observed that in January, 1986, 5
\nshops were given on licence fee basis by the then shops were
\nallotted on  licence fee  basis by  the then  minister (Smt.
\nMohsina Kidwai). Thereafter, from 1992 onwards 52 shops have
\nbeen sanctioned\t by the\t then minister for Urban Development
\n(Smt Shiela Kaul) out of which 7 shops were allotted by Smt.
\nShiela Kaul  before she\t herself had  approved the policy in
\n1994 for disposal of the shops on tender basis.\n<\/p>\n
     8.\t  Break-up of  the shops  allotted  by\tSmt.  Shiela
\nKaul, the then Minister during her tenure is as follows:\n<\/p>\n
     Shops allotted from 1992 to 1994
\n\t\t\t\t      7<\/span>
\n     (Before the  Policy of  giving  the
\n     shops on tender basis    was
\n     approved).\n<\/p><\/blockquote>\n
     Shops allotted after 1994 policy
\n\t\t\t\t     45<\/span>
\n     was laid down.<\/p><\/blockquote>\n
     Shops not accepted by the allottees
\n\t\t\t\t      9<\/span>
\n     The contents,  quoted  above,  only  give\tthe  factual
\nposition pertaining  to the allotment of shops\/stalls during
\nthe period  from 1979  onwards. It  is further\tobvious that
\nSmt. Shiela  Kaul herself  framed the  Policy  in  1994\t for
\ndisposal of the shops on tender basis but did not follow the
\nsame. At  this stage  it would\tbe instructive\tto quote the
\nexplanation given  by Smt.  Shiela Kaul\t in her affidavit in
\nreply to  the show  cause notice  to the allegation that she
\nallotted shops\tto her\ttwo  grand  children,  friends,\t and
\nrelations:\n<\/p>\n
     “In any  case, the\t allegations are  wrong in  material
\nparticulars in that-\n<\/p>\n
     In respect to the 2 shops to her grandsons, she was not
\naware at  that time  because the name in the list were Vivek
\nKumar &\t Ashish Kumar  and the\taddresses were\tof Delhi  of
\nwhich she  was not  aware. The shop allotted to maid servant
\nof her\tson Vikram  Kaul, she  was not aware of her name and
\naddresses in  the statement  given to  her. She comes from a
\nweaker section of society and comes under Schedule Tribes.”\n<\/p>\n
     We do  not wish  to comment except that we are at pains
\nto read\t the above  quoted stand  taken by  a person who has
\nheld high offices like Central Minister and Governor.\n<\/p>\n
     This Court in Common Cause A Regd. Society vs. Union of
\nIndia &\t Ors. Writ  Petition (C)<\/a>  26 of\t 1995 (Capt.  Satish
\nSharma’s case)\tdecided on November 4, 1996 relied upon this
\nCourt’s judgment  in Nilabati  Behera  (Smt.)  Alias  Lalita
\nBehera Vs.  State of  Orissa and Ors. 1993 (2) SCC 746. This
\nCourt also referred to Rookes Vs. Barnard & Ors. 1964 Appeal
\nCases 1129  and the  judgment of the Court of Appeal in A.B.
\nand Ors.  Vs. South  West Water\t Services Ltd.\t1993 Queen’s
\nBench 507 and held as under:\n<\/p>\n
     “We are  of the  view  that  the  legal  position\tthat
\nexemplary damages  can be awarded in a case where the action
\nof  a\tpublic\t servant   is\toppressive,   arbitrary\t  or
\nunconstitutional is unexceptionable.”\n<\/p>\n
     Even in  the judgment  dated October  11, 1996 by which
\nshow cause notice was issued to Smt. Shiela Kaul, this Court
\nreferred to  various  judgments\t of  different\tCourts\tfrom
\ndifferent countries  in the world and has held that a public
\nservant is  liable to  exemplary damages  for his acts which
\nare oppressive, arbitrary or unconstitutional.\n<\/p>\n
     The question for consideration, however, is whether the
\naction of  Smt. Shiela\tKaul, as  discussed in detail in our
\njudgment dated October 11, 1996 (relevant part quoted above)
\nand also  in various  interim orders quoted above, makes her
\nliable to pay exemplary damages. After gibing our thoughtful
\nconsideration to  the material\ton record  and in particular
\nthe findings  of this Court- quoted above- the answer has to
\nbe in  the affirmative. Smt. Shiela Kaul’s action was wholly
\narbitrary, malafide  and unconstitutional.  This  Court\t has
\ngiven clear  finding in\t the judgment\/orders quoted above to
\nthis effect.  We, therefore,  hold that\t Smt. Shiela Kaul is
\nliable to pay exemplary damages.\n<\/p>\n
     We have  heard Dr.\t Rajiv Dhawan,\tMr. Kapil Sibal, Mr.
\nAltaf Ahmad,  learned Additional  Solicitor General  and Mr.
\nShiv Sagar Tiwari on the question of quantum. Dr. Dhawan has
\nstated that  Smt.   Shiela Kaul has followed the same Policy
\nwhich was  being followed by her predecessors in office. Mr.
\nKapil Sibal  has contended  that exemplary damages should be
\nawarded for  public injury  caused as  a result of arbitrary
\nexercise of  power on  the part of Smt. Shiela Kaul. He has,
\nhowever, contended that so far as the allotments made by her
\nare concerned,\tin the\tfacts and circumstances of the case,
\nexemplary damages  are not  called for.\t Mr. Sibal has based
\nhis contention on the assumption that if the allotments were
\nto be  made to\tthe persons belonging to the weaker sections
\nof the\tsociety, then, there would not have much gain to the
\nState Exchequer. There is nothing on the record to show that
\nif   the allotments  were to be made only to weaker sections
\nor to  any category of persons. In any case Smt. Shiela Kaul
\ndid not\t follow any  Policy or\tcriteria. Allotments  w e re
\nmade by her in an arbitrary and illegal manner.\n<\/p>\n
     We may  mention that  this Court  in  the\torder  dated
\nNovember 4,  1996 concerning Capt. Satish Sharma awarded Rs.
\n50 lacs\t as damages  for his  actions which  were arbitrary,
\nmalafide and unconstitutional.\n<\/p>\n
     After examining  all the facts and circumstances of the
\ncase and giving our thoughtful consideration to this aspect.
\nWe direct  Smt. Shiela\tKaul to\t pay  a\t sum  of  Government
\nExchequer. Since  the property\twith  which Smt. Shiela Kaul
\nwas dealing was public property, the Government which is “by
\nthe people:  has to  be compensated.  We further direct Smt.
\nShiela Kaul  to\t deposit  the  amount  with  the  Secretary,
\nministry of  Finance, Government of India within nine months
\nfrom today.  The amount if not paid, shall be recoverable as
\narrears of land revenue.\n<\/p>\n
     Before parting  with this\torder, we make it clear that
\nthe CBI. Which is separately investigating the matter, shall
\nnot be influenced by any observations made by this Court for
\nreaching the  conclusion as  to whether any prima facie case
\nfor prosecution\/trial  is made out against Smt. Shiela Kaul.
\nIt shall  have to  be decided  on the  basis of the material
\ncollected and made available with the CBI as a result of the
\ninvestigation.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shiv Sagar Tiwari vs Union Of India & Ors on 8 November, 1996 Bench: Kuldip Singh, B.L. Hansaria PETITIONER: SHIV SAGAR TIWARI Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 08\/11\/1996 BENCH: KULDIP SINGH, B.L. HANSARIA ACT: HEADNOTE: JUDGMENT: O R D E R One of the issues for […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-1207","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShiv Sagar Tiwari vs Union Of India & Ors on 8 November, 1996 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shiv-sagar-tiwari-vs-union-of-india-ors-on-8-november-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shiv Sagar Tiwari vs Union Of India & Ors on 8 November, 1996 - 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