High Court Of Delhi
S.K.GUPTA - Appellant
Versus
UNION OF INDIA - Respondent
Civil 785 of 1972
Decided On : 12/12/1976
( 52 ) HENCE, section 17 (1) and (4) could not be resorted to in the present case. Except the notification under section 4, all the proceedings taken are invalid. Accordingly, in my opinion, this petition should be allowed and notifications (iii), (iv) and (v) should be quashed, saving the first three paragraphs of notification (iii) which pertain to section 4 of the Act. The respondents will, or course, be entitled to proceed afresh from that stage in accordance with law. Having regard to all the circumstances, in particular, that the petitioner has succeeded only on one point and much time was spent over the others. I would leave the parties to bear their own costs.
( 53 ) HAVE had the pleasure of reading the elaborate and convincing judgement of my learned brother Chawla J. I would however like to add a few words of my own on judicial review of subjective discretion.
( 54 ) THE terms "subjective" and "objective" gave rise to a debate in the course of arguments. In the philosophy of mind subjective denotes what is referred to the thinking subject, the Ego. The objective belongs to the object of thought, the Non-Ego. It is a tendency to lay stress upon what is external to the mind as opposed to the subjective sensations that arise only in the mind.
( 55 ) TRUE it is that there is no such thing as purely subjective or purely objective. These elements are so mixed in us that it is difficult to say when the subjective element recedes and the objective element preponderates. The mind is conditioned by the object. The object in its turn influences the mind. There is action and interaction. But mankind has always striven to be objective as far as it has lain in its power. This thought has been expressed by judge Cordozo in his inimitable style:"the traditions of our jurisprudence commit us to the objective standard. I do not mean, of course, that this ideal of objective vision is ever perfectly attamed. We cannot transcend the limitations of the ego and see anything as it really is. None the less, the ideal is one to be striven for within the limits of our capacity. This truth, when clearly perceived, tends to unify the judge's function. " (Selected Writings p. 151 ).
( 56 ) BUT here we are not concerned with the philosophical systems of thought and their refinements. These two terms have gained currency and are now accepted as part of the legal nomenclature. Subjective power means in plain terms discretionary administrative action. it is subjective freedom of choice to take one course or another. There comes in at once the need for legal control. The need for control, and control according to law, will remain so long as men believe that uncontrolled power is an evil to be eradicated from civilised society. It is perhaps two often forgotten that one of the merits of the rule of law is that it is a curb power-irrespective of the person or institution who weilds it. Law, it has been said, is the finest flower of human civilisation.
( 57 ) IT is true that no terminology is perfect. For want of better words writers and judges have adopted these terms. What is after all in a name that which we call a rose. By any other name it would smell as sweet.
( 58 ) SECTION 17
REFERRED TO : Munshi Singh and Others v. Union of India
Ishwarlal Girdharlal Joshi etc. v. State of Gujarat and Another
Raja Anand Brahma Shah v. The State of Uttar Pradesh and others
Maria Silvia Rufina Clarise Rebaire Mirana v. The Union ofIndia and Others
Guntur Ramalakshmamma and others v. Govt. of Andhra Pradesh and Another
Shri Navnitlal Ranchhodlal v. State of Bombay and another
Ganga Bishnu Swaika and another v. Calcutta Pinjrapole Society and others
Sadruddin Suleman Jhaveri v. J. N. Patwardhan and others
Nalamaty Venkata Durga Prakasa Rao and others v. The State of Andhra Pradesh
Ambatipudi Ramabrahmarn v. State of Andhra and Another
B. K. Abdul Azeez v. The State of Mysore and another
Amratlal v. Collector of Ahmedabad
Smt. Somawanti and others v. The State of Punjab and others
Jatadhar Mitra and others v. State of West Bengal and others
Acchanik v The State of Mysore and another
Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust
Barium Chemicals Ltd and another v. Company Law Board and others
Rohtas Industries Ltd. v. S.D. Agarwal and another etc.
Rampur Distillery and Chemical Co. Ltd. v. The Company Law Board, New Delhiand another
M.A. Rasheed and others v. The State of Kerala
Jage Ram and others v. The State of Haryana and others
Jaychand Lal Sethia v. The State of West Bengal and Others
Balwantrai Chunilal Bhatt ami others v. State of Gujarat and others
K. Seshagiri Mailer and others v. Special Tehsildar for Land Acquisition. Kozhikode and another
Periathambi Sudaliar v. Special Tehsildar (L.A.) Planning Scheme, Coimbatcre and another
Jamnadas Devsibhal Bhate and others v. The Commissioner, Nagpur Division, Nagpur and another
Coleen Properties Ltd. v. Minister of Housing and Local Govt.
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