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Report No. 161

5.2. Award of exemplary damages.-

While referring to the observations of Thermas Ringham M.R. in Broome v. Cassell & Co. Ltd., 1972 AC 1027: (1972) 1 All ER 801, the Supreme Court in another case entitled 'Common Cause, a Regd. society v. Union of India, (1996) 6 SCC 593 (598) observed:-

"In the said case Thomas Ringham M.R. further elaborated the concept in the following words:

"In the first category there had been what he variously described as an 'arbitrary and outrageous use Of executive power,' and 'oppressive, arbitary or unconstitutional action by the servants of the government'. Minute textual analysis of these expressions is inappropriate. This was a judgment, not a statute. But there can be no doubt what Lord Devlin was speaking out. It was gross misuse of power, involving tortious conduct, by agents of government. According to the traditional classification of the law of tort, such misuse of power could give rise to any one of a number of causes of action, which Lord Devlin was not at pains to identify."

The Court of Appeal also relied upon the judgment of the House of Lords in Broome v. Cassell & Co. Ltd.

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, arbitary or unconstitutional is unexceptionable."

The court directed the Minister to pay a sum of Rs. 50 lakhs as exemplary damages to the Government Exchequer holding "since the property which Capt. Sharma was dealing was public property, the government which is "by the people" has to be compensated."



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