KAMLESHKUMAR CHHABRA Vs. STATE

JUDGEMENT

(1.) This petition poses a problem as to how best suitable balance should be struck between the statutory executive power and legal protection to the citizen. Modern Government demands discretionary powers, which are as wide as they are numerous. It is the attitude of the Courts to such seemingly unbounden powers, which is perhaps the most revealing feature of an executive administrative authority. In this connection the first requirement is the recognition that all power has legal limits. The next requirement, no less vital is that Courts should draw those limits in a way which strikes the most suitable balance between executive power and legal protection extended and available to the citizen. It has been upon public authorities is not absolute, even within its apparent boundaries, but is subject to general legal limitations. It goes without saying that Legislature can never be taken to have intended to give any statutory body or authority a power to act in bad faith or a power to abuse its powers. It is for the Courts to see that the power is being exercised within the scope of the statutory authority given by the Legislature. Be it discretionary, for discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections: for as one saith, talis discretio discretionem confundit.

(2.) The common theme of all the judgments and passages quoted therein is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely - that is to say, it can validly be used only in the right and proper way which Legislature when conferring it is presumed to have intended. Although the Government lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms. It is with this preface, which was felt necessary the problem posed by the present petition is approached and examined in its numerous facets.

(3.) The petitioner, who is running a sawmill in Sendhwa, district Khargone, is of necessity required to use the raw-material, forest-wood and timber for running his business and for that purpose the law enjoins upon him to get himself registered as a manufacturer, dealer and trader and he in fact had applied for the same in the month of Dec., 1981. It is admitted by the respondents that this application made by the petitioner was m view of the instructions of the Government not decided by the Divisional Forest Officer thinking that the power was taken away by the Government'. However, on being directed by this Court in Misc. Petition No. 149 of 1982, the said application has been duty considered by the Divisional Forest Officer, Barwani and has been rejected by his order, D/-15-10-1982. It would not be out of place to order dated 26-8-1982, passed in Misc. Petition No. 149 of 1982 :