December 9, 2022

Tort of Misfeasance in the public office

`Tort’ has been derived from the Latin word “tortus” which means “twisted” or “crooked”. In its original and most general sense, “tort” is a wrong. Jowitt’s Dictionary of English Law defines Tort as under:

“Tort signifies an act which gives rise to a right of action, being a wrongful act or injury consisting in the infringement of a right created otherwise than by a contract. Torts are divisible into three classes, according as they consist in the infringement of a jus in rem, or in the breach of a duty imposed by law on a person towards another person, or in the breach of a duty imposed by law on a person towards the public.”

Winfield’s classic definition provides as under: –

“Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”

Kinds of Torts

The first class includes,

(a) torts to the body of a person, such as assault, or to his reputation, such as libel, or to his liberty, such as false imprisonment;

(b) torts to real property, such as ouster, trespass, nuisance, waste, subtraction, disturbance;

(c) torts to personal property, consisting,

(i) in the unlawful taking or detaining of or damage to corporeal personal property or chattels; or (ii) in the infringement of a patent, trade mark, copyright, etc.;

(d) slander of title;

(e) deprivation of service and consortium.

The second class includes deceit and negligence in the discharge of a private duty.

The third class includes those cases in which special damage is caused to an individual by the breach of a duty to the public.”

Meaning of misfeasance in public office

In Administrative Law by Sir William Wade, 7th Edn., “misfeasance in public office” has been defined as malicious abuse of power, deliberate mal-administration and unlawful acts causing injury.

It is further provided in the same book that “misfeasance in public office” is the name now given to the tort of deliberate abuse of power. After considering various decided cases, Prof. Wade proceeds to say:

“Tort of misfeasance in public office goes at least to the length of imposing liability on a public officer who does an act which to his knowledge amounts to an abuse of his office and which causes damage.”

Prof. Wade further proceeds to say as under:

“There are now clear indications that the courts will not award damages against public authorities merely because they have made some order which turns out to be ultra vires, unless there is malice or conscious abuse. Where an Australian local authority had passed resolutions restricting building on a particular site without giving notice and fair hearing to the landowner and also in conflict with the planning ordinance, the Privy Council rejected the owner’s claim for damages for depreciation of his land in the interval before the resolutions were held to be invalid. The well-established tort of misfeasance by a public officer, it was held, required as a necessary element either malice or knowledge by the council of the invalidity of its resolutions.

Halsbury’s Laws of England, Vol I(I) 4th Edn. (Reissue), (para 203) provides as under:

“Deliberate abuse of public office or authority, bad faith on the part of a public officer or authority will result in civil liability where the act would constitute a tort but for the presence of statutory authorisation, as Parliament intends statutory powers to be exercised in good faith and for the purpose for which they were conferred. Proof of improper motive is necessary in respect of certain torts and may negative a defence of qualified privilege in respect of defamation, but this is not peculiar to public authorities.

There exists an independent tort of misfeasance by a public officer or authority which consists in the infliction of loss by the deliberate abuse of a statutory power, or by the usurpation of a power which the officer or authority knows he does not possess, for example by procuring the making of a compulsory purchase order, or by refusing, or cancelling or procuring the cancellation of a licence, from improper motives. However, where there has been no misfeasance, the fact that a public officer or authority makes an ultra vires order or invalidly exercises statutory powers will not of itself found an action for damages.”

Supreme Court on Tort of Misfeasance

Tort of misfeasance in public office was considered by Supreme Court in Lucknow Development Authority vs. M.K. Gupta (1994) 1 SCC 243. Relying upon the Administrative Law by Prof. Wade, exemplary damages were allowed to a consumer who had initiated proceedings under the Consumer Protection Act, 1986.

The Court held that the officers of the Lucknow Development Authority were not immune from tortious liability and then proceeded to say that the National Consumer Disputes Redressal Commission was not only entitled to award value of the goods or services but also to compensate a consumer for injustice suffered by him. The Court, therefore, upheld the award of Rs. 10,000/- as compensation allowed by the Commission on the ground that the action of the appellant amounted to harassment, mental torture and agony of the respondent.

The Court then proceeded to observe as under: –

“But when the sufferance is due to mala fide or oppressive or capricious acts etc. of a public servant, then the nature of liability changes. The Commission under the Act could determine such amount if in its opinion the consumer suffered injury due to what is called misfeasance of the officers by the English Courts. Even in England where award of exemplary or aggravated damages for insult etc. to a person has now been held to be punitive, exception has been carved out if the injury is due to `oppressive, arbitrary or unconstitutional action by servants of the Government’.”

the Court proceeded to consider the question of award of exemplary damages in the light of the decision in Cassell & Co. Ltd. v. Broome & Anr. 1972 (1) All ER 801 as also the earlier decision in Rookes v. Barnard 1964 (1) All ER 367 and other English decision including Ashby v. White (1703)2 Ld Raym 938, and held that exemplary damages could be awarded against the officers of the Lucknow Development Authority.

In Common Cause, a registered society v. Union of India, 1999, the decision in the Lucknow Development Authority’s case (supra) had been followed by Supreme Court in the Judgment under Review and a notice was issued to the petitioner to show cause why should he not be made liable to pay damages for his mala fide action in allotting petrol pumps to the persons concerned. This notice was issued because the Court was of the opinion:

“Public servants may be liable in damages for malicious, deliberate or injurious wrongdoing.’

However, after reviewing the judgment, the court held that,

“Mere allotment of Petrol outlets would not constitute “Misfeasance” unless other essential elements were present. These allotments have already been quashed as having been arbitrarily made and we appreciate the efforts of “Common Cause” for having caused this exposure. But the matter must end here.”