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Anil Sabharwal (1997) 11 SCC 490 1996 Indlaw SC 4162,Ashok Hurra v PRE |
Rupa Bipin Zaveri (1997) 4 SCC 226 1997 Indlaw SC 2568,Kiran v PRE |
Sharad Dutt (2000) 10 SCC 243 1999 Indlaw SC 2077,Swati Verma v PRE |
Rajan Verma (2004) 1 SCC 123 2003 Indlaw SC 967,Harpit Singh Anand PRE |
v PRE |
State of W.B.(2004 PRE |
10 SCC 505 2003 Indlaw SC 810,Jimmy Sudarshan Purohit v PRE |
Sudarshan Sharad Purohit (2005) 13 SCC 410 2004 Indlaw SC 2040,Durga Prasanna Tripathy v PRE |
Arundhati Tripathy (2005) 7 SCC 353 2005 Indlaw SC 486,Naveen Kohli v PRE |
Neelu Kohli (2006) 4 SCC 558 2006 Indlaw SC 598,Sanghamitra PRE |
Ghosh v PRE |
Kajal Kumar Ghosh (2007) 2 SCC 220 2006 Indlaw SC 775,Rishikesh Sharma v PRE |
Saroj Sharma (2007) 2 SCC 263 2006 Indlaw SC 994,Samar Ghosh v PRE |
Jaya Ghosh (2007) 4 SCC 511 2007 Indlaw SC 1000 and Satish Sitole PRE |
Ganga (2008 PRE |
7 SCC 734 2008 Indlaw SC 1077.However,these are the cases,where this Court came to rescue the parties on the ground for divorce not provided for by the legislature in the statute PRE |
In Anjana Kishore v PRE |
Puneet Kishore (2002) 10 SCC 194 2001 Indlaw SC 21204,this Court while allowing a transfer petition directed the court concerned to decide the case of divorce by mutual consent,ignoring the statutory requirement of moving the motion after expiry of the period of six months under Section 13-B(2) of the Act PRE |
In Anil Kumar Jain,this Court held that an order of waiving the statutory requirements can be passed only by this Court in exercise of its powers u/art.142 of the Constitution PRE |
The said power is not vested with any other court PRE |
However,we have also noticed various judgments of this Court taking a contrary view to the effect that in case the legal ground for grant of divorce is missing,exercising such power tantamounts to legislation and thus transgression of the powers of the legislature,which is not permissible in law (vide Chetan Dass v PRE |
Kamla Devi (2001) 4 SCC 250 2001 Indlaw SC 20206 and Vishnu Dutt Sharma PRE |
Manju Sharma (2009) 6 SCC 379 2009 Indlaw SC 330 PRE |
Generally,no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions PRE |
The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.(Vide State of Punjab v PRE |
Renuka Singla (1996) 8 SCC 90 1996 Indlaw SC 2663,State of U.P.v PRE |
Harish Chandra (1996) 9 SCC 309 1996 Indlaw SC 157,Union of India v PRE |
Kirloskar Pneumatic Co.Ltd (1996) 4 SCC 453 1996 Indlaw SC 131.,University of Allahabad v PRE |
Dr PRE |
Anand Prakash Mishra (1997) 10 SCC 264 1996 Indlaw SC 2036 and Karnataka SRTC v PRE |
Ashrafulla Khan (2002) 2 SCC 560 2002 Indlaw SC 21 PRE |
A Constitution Bench of this Court in Prem Chand Garg v PRE |
Excise Commr PRE |
AIR 1963 PRE |
SC 996 1962 Indlaw SC 473 held as under: PRE |
An order which this Court can make in order to do complete justice between the parties,must not only be consistent with the fundamental rights guaranteed by the Constitution,but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws PRE |
emphasis supplied PRE |
The Constitution Benches of this Court in Supreme Court Bar Assn.v PRE |
Union of India (1998) 4 SCC 409 1998 Indlaw SC 688 and E.S.P.Rajaram v PRE |
Union of India (2001) 2 SCC 186 2001 Indlaw SC 20411 held that u/art.142 of the Constitution,this Court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute PRE |
It is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure PRE |
Similar view has been reiterated in A.R.Antulay v PRE |
R.S.Nayak (1988) 2 SCC 602 1988 Indlaw SC 467,Bonkya v PRE |
State of Maharashtra (1995) 6 SCC 447 1995 Indlaw SC 1282,Common Cause v PRE |
Union of India (1999) 6 SCC 667 1999 Indlaw SC 503,M.S.Ahlawat v PRE |
State of Haryana (2000) 1 SCC 278 1999 Indlaw SC 794,M.C.Mehta v PRE |
Kamal Nath (2000) 6 SCC 213 2000 Indlaw SC 529,State of Punjab v PRE |
Rajesh Syal (2002) 8 SCC 158 2002 Indlaw SC 1146,Govt.of W.B.v PRE |
Tarun K.Roy (2004) 1 SCC 347 2003 Indlaw SC 1039,Textile Labour Assn.v PRE |
Official Liquidator (2004) 9 SCC 741 2004 Indlaw SC 277,State of Karnataka PRE |
Ameerbi (2007) 11 SCC 681 2006 PRE |
Indlaw SC 999,Union of India v PRE |
Shardindu (2007) 6 SCC 276 2007 Indlaw SC 537 and Bharat Sewa Sansthan v PRE |
U.P.Electronics Corpn PRE |
Ltd.(2007) 7 SCC 737 2007 Indlaw SC 1580 PRE |
In Teri Oat Estates (P PRE |
Ltd.v PRE |
UT,Chandigarh (2004) 2 SCC 130 2003 Indlaw SC 1504 PRE |
this Court held as under: " ...sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right PRE |
despite an extraordinary constitutional jurisdiction contained in Art.142 of the Constitution of India,this Court ordinarily would not pass an order which would be in contravention of a statutory provision PRE |
In Laxmidas Morarji v PRE |
Behrose Darab Madan (2009) 10 SCC 425 2009 Indlaw SC 1154,while dealing with the provisions of Art.142 of the Constitution,this Court has held as under: PRE |
The power u/art.142 of the Constitution is a constitutional power and hence,not restricted by statutory enactments PRE |
Though the Supreme Court would not pass any order u/art.142 of the Constitution which would amount to supplanting substantive law applicable or ignoring express statutory provisions dealing with the subject,at the same time these constitutional powers cannot in any way,be controlled by any statutory provisions PRE |
However,it is to be made clear that this power cannot be used to supplant the law applicable to the case PRE |
This means that acting under Article 142,the Supreme Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case PRE |
The power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties PRE |
Emphasis added PRE |
After elaborately discussing almost all the case laws on this subject about jurisdiction of this Court under Article 142,summarised the same in the following words: Therefore,the law in this regard can be summarised to the effect that in exercise of the power u/art.142 of the Constitution,this Court generally does not ... |
After saying so,the Court rejected the request of the parties to waive the statutory period of six months under the Act Ratio |
In Mota Ram vs PRE |
State of Haryana,(2009) 12 SCC 727 2009 Indlaw SC 682,this Court,while reiterating the above principles has concluded that Art.142 cannot be exercised to negate the statutory provisions PRE |
In Academy of Nutrition Improvement and Others vs PRE |
Union of India,JT 2011 (8) SC 16 2011 Indlaw SC 515,the following conclusion about the applicability of Art.142 is relevant PRE |
The question is having held that Rule 44I to be invalid,whether we can permit the continuation of the ban on sale of non-iodised salt for human consumption for any period PRE |
Art.142 of the Constitution vests unfettered independent jurisdiction to pass any order in public interest to do complete justice,if exercise of such jurisdiction is not be contrary to any express provision of law PRE |
In Supreme Court Bar Association v PRE |
Union of India: 1998 (4) SCC 409 PRE |
1998 Indlaw SC 688,this Court observed: The Supreme Court in exercise of its jurisdiction u/art.142 has the power to make such order as is necessary for doing complete justice "between the parties in any cause or matter pending before it".The very nature of the power must lead the court to set limits for itself within ... |
Indeed this Court is not a court of restricted jurisdiction of only dispute settling PRE |
It is well recognised and established that this Court has always been a law maker and its role travels beyond merely dispute settling PRE |
It is a "problem solver in the nebulous areas".(See PRE |
K.Veeraswami v PRE |
Union of India : 1991 (3) SCC 655 1991 Indlaw SC PRE |
711,but the substantive statutory provisions dealing with the subject matter of a given case,cannot be altogether ignored by this Court,while making an order u/art.142.Indeed,these constitutional powers can not,in any way,be controlled by any statutory provisions but at the same time these powers are not meant to be ex... |
In Kalyan Chandra Sarkar v PRE |
Rajesh Ranjan : 2005 (3 PRE |
SCC 284 2005 Indlaw SC 93,this Court after reiterating that this Court in exercise of its jurisdiction u/art.142 of the Constitution would not pass any order which would amount to supplanting substantive law applicable to the case or ignoring express statutory provisions dealing with the subject,observed as follows PRE |
It may therefore be understood that the plenary powers of this Court u/art.142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes .These PRE |
powers also exist independent of the statutes with a view to do complete justice between the parties...and are in the nature of supplementary powers PRE |
and] may be put on a different and perhaps even wider footing than ordinary inherent powers of a court to prevent injustice PRE |
The advantage that is derived from a constitutional provision couched in such a wide compass is that it prevents 'clogging or obstruction of the stream of justice PRE |
See: Supreme Court Bar Association 1998 Indlaw SC 688 (supra PRE |
Though the jurisdiction of this Court,u/art.142 of the Constitution of India is not in dispute,we make it clear that exercise of such power would,however,depend on the facts and circumstances of each case Ratio |
The High Court,in exercise of its jurisdiction,u/s.482 of the Criminal Procedure Code and this Court Ratio |
u/art.142 of the Constitution,would not ordinarily direct quashing of a case involving crime against the society particularly Ratio |
when both the trial Court as also the High Court have found that the charge leveled against the appellant under the Act has been made out and proved by the prosecution by placing acceptable evidence Ratio |
Finally,learned senior counsel for the appellant has cited certain orders of this Court wherein this Court has reduced the period of sentence already undergone while upholding the conviction ARG |
We have perused those orders Ratio |
The orders do not disclose any factual details and the relevant provisions under which the accused was charged/convicted and minimum sentence,if any,as available in the Act as well as the period already undergone Ratio |
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